Arbitration

Arbitration

Arbitration, reference of a dispute to an impartial person or persons, called arbitrators, for a decision or award based on evidence and arguments presented by the disputants. The parties involved usually agree to resort to arbitration in lieu of court proceedings to resolve an existing dispute or any grievance that may arise between them. Arbitration may sometimes be compelled by law, particularly in connection with labor disputes involving public employees or employees of private companies invested with a public interest, such as utilities or railroads.

Most arbitration in the United States has involved labor or commercial disputes. In recent years, however, other uses of arbitration have gained acceptance, such as arbitration of medical malpractice claims and resolution of disputes among insurers in states with no-fault insurance or uninsured motorist programs. As worldwide trade and investment have increased, international commercial arbitration has become important both in planning international transactions and in resolving disputes when they arise.

Labor arbitration is concerned largely with disputes between employers and employees over interpretation or application of the terms of collective bargaining agreements, and occasionally with new contract terms. Commercial arbitration deals with disputes among private parties regarding contracts to produce, buy, sell, lease, or distribute goods, or to perform a business service.

It was formerly thought that so-called public law disputes, such as those arising under antitrust, securities, or patent laws, could not be arbitrated. Since 1982, however, disputes concerning validity or infringement of a U.S. patent are arbitrable by statute. The U.S. Supreme Court has approved enforcement of agreements to arbitrate cases involving claims under the securities laws, and (in international transactions) under the antitrust laws as well. (1)

Treaties and Conventions

For detailed information about UNCITRAL materials, the Inter-American Convention on International Commercial Arbitration, the New York Convention (the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards), the Washington Convention (the Convention on the Settlement of Investment Disputes between States and Nationals of Other States) and other treaties concerning international arbitration, click here. For investment treaty arbitration and international law, see here.

Arbitration in the Encyclopedia: Labor Arbitration, Commercial Arbitration and International Arbitration.

Arbitration in 2013

United States views on international law [1] in relation to Arbitration: In 2013, the United States filed two briefs as amicus curiae in the Supreme Court of the United States in a case challenging an award issued in an arbitration conducted under a bilateral investment treaty. BG Group PLC v. Argentina, No. 12-138. Both briefs are available at (Secretary of State website) state.gov/s/l/c8183.htm. The arbitration was brought by a United Kingdom company, BG Group, after its investment in a gas distribution enterprise in Argentina was adversely affected by state action taken to address Argentina’s economic crisis beginning in 2001. The United Kingdom and Argentina had entered into a bilateral investment treaty (“BIT”) in 1990 which provided for arbitration if the dispute was first submitted to a court in the state where the investment was made and eighteen months had passed without resolution. BG Group did not resort to the courts in Argentina, but proceeded directly to arbitration, which resulted in an award of more than 5 million for BG Group.

Some Aspects of Arbitration

Argentina filed suit in U.S. district court in 2008 seeking to vacate the arbitral award, while BG Group sought confirmation of the award. The district court denied Argentina’s motion to vacate and confirmed the award. Argentina appealed. The U.S. Court of Appeals for the District of Columbia reversed and vacated the award, holding that the court had the authority to decide questions of “arbitrability” under the facts of the case and that BG Group had failed to comply with a precondition to arbitration. BG Group petitioned for the U.S. Supreme Court to review the case

Developments

In May 2013, the United States filed a brief in opposition to the petition for certiorari in the case. The United States opposed Supreme Court consideration of the case because there was no circuit split on the issue and the U.S. government did not foresee that the decision of the court of appeals would have far-reaching implications, due to the uniqueness of the litigation requirement in the UK-Argentina BIT.

Details

After the Supreme Court granted certiorari, the United States filed a second brief with the Court in support of remanding the case to the appeals court for a proper application of international law principles uniquely relevant in the investment arbitration setting, rather than applying domestic commercial arbitration case law. In particular, the U.S. brief argues that, in the investor-state arbitration context, courts should review independently arbitral rulings on objections to jurisdiction based on a lack of consent to arbitrate. Excerpts follow from the U.S. amicus brief filed in September 2013 (with footnotes and citations to the record omitted).*

More

This case presents the question whether, in an action to set aside an investor-state arbitral award subject to the New York Convention, the court should review de novo the arbitral tribunal’s ruling on an investor’s compliance with a requirement of prior litigation in the host State’s courts in a bilateral investment treaty, or instead should review the ruling under the same deferential standard that applies to the tribunal’s ruling on the merits. The Convention does not establish a standard of review governing vacatur proceedings, but contemplates that the reviewing court will generally apply the set-aside law of the country in which (or under the law of which) the award was made—in this case, the FAA. New York Convention art. V(1)(e); Yusuf Ahmed Alghanim & Sons, W.L.L. v. Toys “R” Us, Inc., 126 F.3d 15, 19-21 (2d Cir. 1997), cert, denied, 522 U.S. 1111 (1998). Argentina contends that the arbitral tribunal exceeded its powers, 9 U.S.C. 10(a)(4), by proceeding to adjudicate the merits of the parties’ investment dispute even though Argentina had agreed to arbitrate only after the investor had first submitted the dispute to Argentina’s courts and allowed 18 months for its resolution. The parties disagree over whether the courts should review the arbitral tribunal’s resolution of that question independently or deferentially.

More

In the context of private commercial arbitration agreements, this Court has held that while parties are presumed to have expected arbitrators to have primary authority to decide “‘procedural’ questions” concerning the requirements for submitting claims to arbitration, subject to deferential review, “question[s] of arbitrability” are presumptively for the courts to review independently. Howsam, 537 U.S. at 83-84. In the distinct context of investor-state arbitral proceedings conducted pursuant to investment treaties, courts should not apply that interpretive framework wholesale, but instead should review de novo arbitral rulings on consentbased objections to arbitration, and review deferentially rulings on other objections.

Arbitration in 2013 (Continuation)

United States views on international law [1] in relation to Arbitration: I. IN THE CONTEXT OF PRIVATE COMMERCIAL ARBITRATION, WHETHER THE ARBITRAL TRIBUNAL HAS PRIMARY POWER TO RESOLVE OBJECTIONS TO ARBITRATION TURNS ON THE PARTIES’ AGREEMENT, INTERPRETED ACCORDING TO PRESUMPTIONS REFLECTING THEIR LIKELY EXPECTATIONS

More about Arbitration

A. Because “arbitration is a matter of consent, not coercion,” Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 681 (2010), the jurisdiction of an arbitral tribunal to resolve a dispute depends on whether the parties have agreed to arbitrate the matter. See First Options, 514 U.S. at 943; AT&T Techs., Inc. v. Communications Workers of Am., 475 U.S. 643, 649 (1986). This Court has referred to questions concerning whether an arbitrator is empowered to decide a particular dispute as questions of “arbitrability.” First Options, 514 U.S. at 942.

Development

When a party objects to the propriety of submitting a particular dispute to arbitration, the question arises whether a court or arbitrators should rule upon that objection. If the arbitrators have “primary power” to rule on the objection, the “court reviews their arbitrability decision deferentially.” First Options, 514 U.S. at 942 (emphasis omitted). If the court has primary power, “the court makes up its mind about arbitrability independently,” either by engaging in de novo review of the arbitrators’ decision on arbitrability or, if the parties are litigating in advance whether arbitration is required, by conclusively resolving the issue for itself. Ibid. Whether the court or the arbitrator “has the primary power to decide arbitrability,” id. at 943 (internal quotation marks omitted), turns on whether the parties have agreed “to arbitrate ‘gateway’ questions of ‘ arbitrability,’ ” Rent-A-Center, West, Inc. v. Jackson, 130 S. Ct. 2772, 2777 (2010).

Details

B. In the context of private commercial arbitration, this Court has held that in “deciding whether the parties agreed to arbitrate a certain matter (including arbitrability),” courts “should apply ordinary state-law principles that govern the formation of contracts.” First Options, 514 U.S. at 944. To guide that determination, however, the Court employs a set of “interpretive” presumptions based on the nature of the question at issue and the Court’s understanding of what the parties would likely have agreed upon had they considered the matter expressly. Rent-ACenter, 130 S. Ct. at 2777 n.1.

More

Generally, in the private commercial context, the Court presumes that the parties did not agree to arbitrate “question[s] of arbitrability,” a category that includes “whether the parties are bound by a given arbitration clause” and whether a particular dispute falls within the scope of an arbitration clause. Howsam, 537 U.S. at 83-84; First Options, 514 U.S. at 945. Accordingly, unless the arbitration agreement contains “clea[r] and unmistakabl[e] evidence” that the parties agreed to arbitrate those questions, the court will decide the issue independently. Id. at 944 (internal quotation marks omitted). Conversely, when the objection to arbitration is one
that the parties likely would have expected the arbitrator to decide, such as ” ‘procedural’ questions that grow out of the dispute and bear on its final disposition”—including “allegation[s] of waiver, delay, or a like defense to arbitrability”—the Court presumes that the parties intended to assign the arbitrator primary responsibility for deciding the issue. Howsam, 537 U.S. at 84 (citation omitted), 86.

Arbitration

Embracing mainstream international law, this section on arbitration explores the context, history and effect of the area of the law covered here.

Description of Arbitration

Arbitration

Introduction

Arbitration

This entry provides an overview of the legal framework of arbitration, with a description of the most significant features of arbitration at international level.

Related Work and Conclusions

Arbitration

Arbitration

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See Also

• Arbitration clause

Resources

See Also

• Alternative dispute resolution
• Conciliation
• Mediation
• Mediation and Conciliation Service
• Reference

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See Also

References (Papers)

• Strongin, Andrew Arbitration Chart, Edmund P. Edmonds, Feb 2017
• Conference Of Soviet And American Jurists On The Law Of The Sea And The Protection Of The Marine Environment, Milton Katz, Richard R. Baxter, O. V. Bogdanov, William E. Butler, Thomas M. Franck, Richard Frank, P. P. Gureev, John L. Hargrove, L. A. Ivanaschenko, Y. Kasmin, V. A. Kiselev, B. M. Klimenko, H. G. Knight, O. S. Kolbasov, A. L. Kolodkin, V. M. Koretsky, F. N. Kovalev, V. N. Kudrjavtsev, B. A. Kuvshinnikov, M. I. Lazarev, A. L. Makovsky, Charles W. Maynes, P. A. Moiseev, John N. Moore, A. P. Movchan, T. M. Starzhina, Robert E. Stein, Grigory I. Tunkin, E. T. Usenko, A. F. Vysotsky, A. K. Zhudro, Jan 2017
• Treaty-Based Claims Against Subdivisions Of Icsid Contracting States, Douglas Pivnichny, Jan 2017
• Novel Negotiation, Rebecca Hollander-Blumoff, Jan 2017
• Moving Negotiation Theory From The Tower Of Babel Toward A World Of Mutual Understanding, John Lande, Jan 2017
• Negotiation Is Changing, Noam Ebner, Jan 2017

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See Also

Further Reading

• Information related to arbitration in the Max Planck Encyclopedia of International Law(MPEPIL), Germany, United Kingdom

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See Also

Mediation

Alternative Dispute Resolution

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Further Reading

• The entry “arbitration” in the Parry and Grant Encyclopaedic Dictionary of International Law (currently, the Encyclopaedic Dictionary of International Law, 2009), Oxford University Press

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Notes

1. Arbitration in the Digest of United States Practice in International Law

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Notes

1. Arbitration in the Digest of United States Practice in International Law

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Notes and References

1. Encarta Online Encyclopedia

See Also

Citation Notes

Some commonly cited report series containing investor-state arbitral decisions are the Iran-US CTR and ICSID Rep.

In general, the abbreviations for report series should follow the citation systems.

Disputes between individuals and international organisations (in international forums applying international law) should also be cited in accordance with one of the citation systems.

The Legal History of Arbitration in Ancient Athens

This section provides an overview of Arbitration in Ancient Athens

Resources

See Also

• Legal Biography
• Legal Traditions
• Historical Laws
• History of Law

Further Reading

• Arbitration in Ancient Athens in the Oxford International Encyclopedia of Legal History (Oxford University Press)
• The Oxford Encyclopedia of American Political and Legal History (Oxford University Press)
• Arbitration in Ancient Athens in the Dictionary of Concepts in History, by Harry Ritter
• A Short History of Western Legal Theory, by John Kelly

Spanish Translation of arbitration

This is the legal translation of English to Spanish in relation to arbitration and / or a definition of this topic: Arbitraje (in Spanish, without translation of the dictionary entry).

Arbitration in the International Trade Union Rights Area

Definition of Arbitration provided by ITUC-CSI-IGB: A means of resolving disputes outside the courts through the involvement of a neutral third party, which can either be a single arbitrator or an arbitration board. In non-binding arbitration, the disputing parties are free to reject the third party’s recommendation, whilst in binding arbitration they are bound by its decision. Compulsory arbitration denotes the process where arbitration is not voluntarily entered into by the parties, but is prescribed by law or decided by the authorities.

See conciliation, mediation

Resources

Trade Union Topics

• Trade Union Act
• Trades Union Congress (TUC)
• Trade Union Density
• Definition of Trade Union
• Socialist Coalition
• Socialist Party
• Legislative Power
• Trade unions in Europe
• Trades Union Act
• Cartism
• Poor Law
• Combination Acts

Definition of Arbitration in International Trade

The following is a concept of Arbitration in the context of international trade law, from the Dictionary of International Trade (Global Negotiator): A process of dispute resolution in which a neutral third party (arbitror) renders a decision after a hearing in which both parties have an opportunity to be heard. Arbitration may be voluntary or contractually required. The advantages of arbitration – as opposed to litigation – are neutrality, confidentiality, reduced costs, faster procedures and the arbitrator’s expertise. Internationally, the main arbitration body is the ICC International Chamber of Commerce. Other arbitration institutions include the London Court of International Arbitration, the International Center of Dispute Resolutions (ICDR) and the China International and Economic Trade Arbitration Commission (CIETAC).

Hierarchical Display of Arbitration

Law > Justice > Judicial proceedings
Trade > International trade > Trade relations > Trade dispute
Trade > Trade policy > Commercial law > Commercial arbitration
International Relations > International security > Peace > Settlement of disputes > International arbitration
Finance > Financial institutions and credit > Banking > Arbitrage

Arbitration

Concept of Arbitration

See the dictionary definition of Arbitration.

Characteristics of Arbitration

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Resources

Translation of Arbitration

• Spanish: Arbitraje
• French: Arbitrage
• German: Streitschlichtung
• Italian: Arbitraggio
• Portuguese: Arbitragem
• Polish: Arbitraż

Thesaurus of Arbitration

Law > Justice > Judicial proceedings > Arbitration
Trade > International trade > Trade relations > Trade dispute > Arbitration
Trade > Trade policy > Commercial law > Commercial arbitration > Arbitration
International Relations > International security > Peace > Settlement of disputes > International arbitration > Arbitration
Finance > Financial institutions and credit > Banking > Arbitrage > Arbitration

See also

• Trade dispute
• Commercial arbitration
• International arbitration
• Arbitrage