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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
A review of the ICC Court's and the parties' choices as well as municipal law attitudes that are of interest when considering where to hold an international arbitration
Introduction
International arbitration offers the advantage-amongst others-over court of law proceedings of allowing parties a greater choice of forum. The parties are not limited to the other party's place of residence, or the place where that party has assets, as they normally are in litigation, but are free to agree on practically any place that suits them to hold the arbitration. The parties' scope of choice is much wider than it is in litigation thanks to the existence of a number of conventions which make enforcement of arbitration awards easier to obtain abroad than court judgements.
It has not always been so. For instance, as far as the International Chamber of Commerce ("ICC") is concerned, Articles IX and XXIX of the first ICC arbitration rules of 1922 provided that "the arbitration shall take place in the country and town determined by the Court of Arbitration, after examination of the request for arbitration and before the appointment of arbitrators.1 It was thus the Court of Arbitration and not the parties, that had to fix the place of arbitration.
In practice, however, the Court of Arbitration (the "Court") used not to intervene except in case of disagreement between parties.2 When exercising its duty under the ICC Rules, the Court more often decided the place of arbitration on the basis of the nationality of the sole arbitrator or the chairman. This had another consequence.3 Where the ICC Rules (the "Rules") did not cover a specific point that arose with respect to the procedure, the arbitrator applied the lex fori.4 This practice was confirmed when the Rules in 1939 were modified to state that where the Rules were silent those rules of law should be applied which "result from (...) the provisions of the law of the country where the arbitration takes place".
As arbitration developed, the Rules were modified to take account of the international character of ICC arbitration. Thus, in the 1955 Rules, we find an option for the parties to choose the law of procedure. Only if they had failed to make such a choice did the "law of the country in which the arbitrator holds the proceedings" apply.5 At the same time, the Rules expressly authorized the parties to agree on the place of arbitration.6
The 1975 Rules as well as the present 1988 Rules contain what some may have thought was a revolutionary innovation: the power of the arbitrator to deal with the proceedings outside any specific national law.7 As far as the place of arbitration is concerned, the present Rules uphold the principle of the parties' freedom of choice. Only where the parties have not agreed shall the Court fix the place of arbitration.
Although, in the absence of the parties' choice, the arbitrator has the power to deal with [Page8:] procedural questions without applying the procedural law of the forum, or any other specific national law, such power is limited. The public policy rules of law of lex fori must be respected by the arbitrator who is under an obligation to make sure that the award is enforceable at law.8
A first conclusion can be drawn at this point. Where the parties agree on a place of arbitration in an international dispute they do not thereby necessarily operate a choice of procedural rules. The procedural rules are determined by (i) applicable provisions in the arbitration rules chosen by the parties to govern disputes (institutional or ad hoc rules); (ii) a specific agreement between the parties before or after the arbitration has started (e.g. in the Terms of Reference); (iii) a choice made by the arbitrator by virtue of the applicable rules of arbitration (e.g. in the Terms of Reference or in a separate ruling). The procedural rules at the place of arbitration will, except for rules of a public policy character, only apply as a result of a choice by the parties and/or the arbitrator, but not automatically as a result of the mere choice of the place of arbitration. This does not mean, on the other hand, that the arbitration is "denationalized".
The different concepts of procedural and substantive law in different countries may cause some surprise to the unwary when choosing the place of arbitration. This is what the parties in one ICC case learnt, in which it was the question of the statute of limitation.9 The Claimant asserted that Finnish substantive law applied and that there is no statute of limitation in Finnish law. The arbitrator applied the rules of lex fori, which stipulated that limitation is a matter of procedure and not of substance. Since he was sitting in England, the application of lex fori on the issue was mandatory and the arbitrator came to the conclusion that the claim was statute barred under English law and dismissed the case.10 The choice of place of arbitration decided the outcome of the case.
I. Parties' choice of the place of arbitration
"Would you tell me, please, which way I ought to go from here?"
"That depends a good deal on where you want to get to" said the Cat (Lewis Carroll: Alice's Adventures in Wonderland, Chapter VI).
The parties may choose the place of arbitration in the business agreement, or when a dispute has arisen. Or they may leave it to be made on their behalf by an arbitral institution or by the arbitral tribunal itself. At some stage, a choice must be made.
Where should an international arbitration be held? Should it be in Amsterdam, Cairo, Geneva, Kuala Lumpur, London, Mexico, New York, Paris, Stockholm, Vancouver, or Vienna (to name a few possibilities)? There are practical considerations to be made, such as availability of suitable hearing rooms, accommodations, secretarial assistance, communications and other infra-structure. Just as important to know is that a rapid development has taken place in many countries in recent years; the legislation and the practice has been changed to respond to the demands of international arbitration. But not everywhere; in some places the international movement towards accepting arbitration is still seen with hesitation, if not with suspicion. As a result, there exist great variations with respect to what matters are arbitrable, what form must be given to an arbitration agreement, the degree of judicial intervention in the arbitration process, the means of challenging an arbitrator, the freedom of choice of the law applicable to the merits, whether several arbitrations may be joined together into one single proceeding, whether discovery is possible, what conservatory measures are available, etc.
The parties to an international commercial arbitration are thus generally free to choose the place of arbitration. This is true not only for ICC arbitration, but for most other arbitration systems.11
An example of where the parties have used this freedom is the so-called 1977 U.S./U.S.S.R. [Page9:] Optional Clause Agreement (renewed in 1993) which provides that arbitration shall take place in Stockholm, Sweden.12 The said agreement is intended for inclusion in contracts between legal or natural persons of the U.S.A. and the former foreign trade organizations of the U.S.S.R. It is a good example of a modern trend in commercial arbitration: the choice of a "neutral" place of arbitration.
II. Exercise of parties' choice
It is the experience of the International Court of Arbitration that the parties themselves agree on the place of arbitration to an increasing extent, thus leaving less room for the Court to decide the issue. Statistics demonstrate that the ICC Court's role in determining the place of arbitration has constantly decreased in favour of the parties' agreement on this question.13 While the place of arbitration was fixed by the parties in 62% of the cases in 1982, this choice had grown to 88% in 1991.14
By making the choice themselves, the parties are well positioned to take into account various parameters that are important for the smooth and efficient running of the arbitration. One such factor is the cost of arbitration, the availability of foreign exchange and the freedom to transfer it. A second factor is the time and the costs of travelling. By choosing a place of arbitration in a third country, both parties to the contract will have the inconvenience of travelling and staying abroad; neither of the parties is therefore favoured at the expense of the other. A third factor for the parties to consider is the availability of law reports and law books on both lex causae and lex fori; where the choice of either of these laws has been made in the parties' contract, they can fix the place of arbitration in the country where access to the books and reports is easy. But where there is no agreement, and since the place of arbitration must be fixed before the arbitrators have decided the choice of lex causae and lex fori, it is convenient to fix the place of arbitration in a neutral country where international arbitration is accepted and developed; the chances of obtaining access to the necessary material and expert legal advice is thereby enhanced.
In 1992, ICC arbitrations took place in 25 different countries.15 Western Europe is still the seat chosen by the parties in the majority of ICC arbitrations.16 In 1992 the most often selected countries were, in decreasing order, France, Switzerland, United States and the United Kingdom. Over the last decade, however, Europe's place has been reduced, relatively speaking, whereas other parts of the world, particularly the South Asia and Far East Asia region, have increased. In 1982, no ICC arbitrations were held in that region; in 1991, 17 arbitrations took place in Hong Kong, India, Indonesia, Nepal, the Philippines, Singapore, Sri Lanka and Taiwan.17
III. Guiding principles for the ICC Court
Where, in the absence of the parties' choice, the International Court of Arbitration is called upon to fix the place of arbitration, the Court will normally seek to find an appropriate neutral venue. It will also be guided by the effectiveness that could be expected to be given to the arbitration agreement and any award rendered at the place of arbitration and will take into account the convenience of the parties. What criteria do the ICC Rules stipulate and what happens in practice, when the Court fixes the place of arbitration? Article 12 of the Court's Rules gives no indications as to how the choice should be made.
Where no chairman or sole arbitrator has been appointed by the parties-and this is the most frequent situation-the Court would consider what nationality the arbitrator would be likely to have, and the choice of place of arbitration and of the presiding arbitrator is then undertaken simultaneously. The Court then proceeds by eliminating various possible places of arbitration.
(i) Ostensible neutrality being one of the guiding principles in ICC arbitration, the place of arbitration will as a rule not be fixed in the [Page10:] country of one of the parties. The ostensible neutrality requires that no party shall have an advantage over the other because of the choice of place of arbitration. Justice must not only be done but must be seen to be done, and felt to be done through an initial choice of neutral locale.
(ii) Secondly, the effectiveness of the ultimate award must be ascertained and possible places of arbitration are screened with respect to their adherence to bilateral, multilateral or international conventions recognizing commercial arbitration and enforcement of arbitral awards. Whenever possible, the Court will fix the place in a country adhering to the New York Convention of 1958.18
(iii) Thirdly, the Court's choice of place will be influenced by the attitude of local courts. Where such courts tend to intervene in the arbitration process excessively and offer a party in bad faith an opportunity to obstruct the arbitration, the ICC Court is likely to go elsewhere when fixing the place of arbitration.
(iv) Fourthly, the availability of adequate support services (secretaries, conference rooms, hotels, libraries, etc.) are taken into account.
(v) The parties' choice of applicable law, where such a choice has been made, will normally be taken into account by the Court.
(vi) Lastly, the Court will consider the convenience of the parties and fix a place which is, as far as possible, equally convenient (or inconvenient) to both parties.
When operating its choice the Court will opt for a "neutral" site, unless very strong and specific reasons would justify the fixing of the place of arbitration in the country of one of the parties. Confirming a choice made by the parties to fix the place of arbitration in the defendant's country some times creates problems. In contracts involving powerful organizations, mostly state-owned, who have had a strong bargaining position in their contract negotiations with a private firm, it is not unusual to find the place of arbitration fixed by contract in the country of the state organization. In some such cases where the local party has been defendant, it has used all kinds of procedures and devices to stop the arbitration from going forward. These may include efforts to exercise influence on local and national authorities in order to obtain refusal by competent authorities to issue visas to the arbitrators or the opposing party's counsel, court litigation against the other party, including sometimes the ICC and injunctions against the arbitrator.
The International Court of Arbitration's task, which is to "make every effort to make sure that the award is enforceable at law" (Art. 26 of the ICC Rules), and that it is delivered speedily and at reasonable costs, is not enhanced by such behaviour of the parties. It is not surprising therefore that the Court does not generally fix the place of arbitration in a party's country.
Two examples may illustrate the practical application of the above principles. In a recent case between Austrian and Yugoslav parties, the arbitration clause provided that "Swiss Material Law" be applied. The Court fixed the place of arbitration in Zurich. By doing so the Court opted for (i) a neutral place, (ii) adhering to international conventions, (iii) where local courts are mindful of the autonomy of arbitration, (iv) where adequate support services are available, (v) which was in the country of the applicable law chosen by the parties (vi) equidistant from the disputing parties.
In another recent case the arbitration clause in the agreement between Italian and Spanish parties stipulated arbitration "at the International Chamber of Commerce in Paris". The arbitrators were to decide "according to International Chamber of Paris regulations". This clause was not interpreted as an unambiguous agreement between the parties to have the arbitration in Paris. In the absence of a clear choice it is the Court's practice to fix the place of arbitration in Paris in a case like this, since the wording could mean that the parties meant the place to be Paris (unless they merely added "in Paris" to avoid any doubt as to the institution that would administer the arbitration; this is not necessary for parties to do, since there exists only one International Chamber of Commerce in the world and it has its seat in Paris) and since the choice of Paris would not contravene any of the general principles referred to above (neutrality, adherence to international conventions etc.). [Page11:]
IV. Reducing the importance of the place of arbitration through international conventions and other initiatives
In view of the progress in international commercial arbitration through the late seventies and early eighties, the United Nations considered that it would be helpful to offer a model on international arbitration legislation. One-at least-useful purpose would be served if a majority of countries adopted similar legislation, namely the importance of the choice of the place of arbitration would be reduced, since many local differences relating to the arbitration procedure would have disappeared.
On June 21, 1985, the United Nations Commission on International Trade Law (UNCITRAL) adopted a model law on international commercial arbitration. The model law is intended to serve as a model of domestic arbitration legislation, harmonizing and making more uniform the practice and procedure of international commercial arbitration while freeing international arbitration from the parochial law of any given adopting state. Its existence should be of particular value not only in countries which would benefit from modernization, but also in those countries which may be adopting or expanding their arbitration laws for the first time. Today, a number of countries on many continents have adopted arbitration legislation based on the UNCITRAL Model law, though not so many countries having a legislation in need of modernization as newcomers in the field of international arbitration.19
Another step to reduce some procedural differences in international arbitration has been taken by the International Bar Association ("IBA"), notably relating to the presentation of evidence. The "Supplementary Rules Governing the Presentation and Reception of Evidence in International Commercial Arbitration" (called in short "The IBA Rules of Evidence") were adopted by resolution of the Council of the IBA on May 28, 1983.20 They are intended to be supplementary to existing rules and only deal with the reception of evidence by arbitrators. They are meant for cases where one party and its counsel come from a country whose system of law and procedure has its origins in the common law, and where the other party and its counsel come from a civil law and procedure country.
The IBA Rules of Evidence can be incorporated into other arbitration rules, contractually, by adding a paragraph referring to them in the arbitration clause, or they can be used as guidelines to the arbitrators. The Rules provide, inter alia, for the exchange of lists regarding any document that may be produced during the hearings, a right for parties to obtain a copy of any listed document, the delivery of witness statements within a certain period after the introductory submissions, and a right to cross-examine witnesses.
V. Features particular to different fora
In spite of the Model Law and the IBA Rules of Evidence, important differences exist in the way an international commercial arbitration will be conducted and in the interplay between arbitrators and the courts at various places of arbitration. I venture to suggest that the differences will continue to exist and that it may even be desirable that they do so, notably with regard to those differences which respond to specific needs for a particular case or the specific wishes of the parties. Let us now examine the particular features which relate to different places.
A. Arbitrability of disputes
1. Competition law has in many countries been considered an area excluded from the jurisdiction of the arbitrators. Where an arbitrator's jurisdiction is not a priori excluded, his powers are, however, limited.21
An arbitrator may not apply administrative or penal sanctions or powers exclusively reserved [Page12:] to a public authority, such as granting an exemption under Article 85.3 of the Treaty of Rome.22
A claim that a contract is unenforceable due to the non-arbitrability of issues concerning competition laws raises the question whether the arbitrator has jurisdiction to deal with the dispute or whether he should refer the decision on jurisdiction to a court of law as a preliminary issue. In so referring, the arbitrator avoids the efficacy of arbitration, since the allegation of non-arbitrability may have been made mala fide to delay the proceedings.
2. The U.S. Supreme Court decided on July 2, 1985, that a Sherman Act antitrust claim may be subjected to arbitration when the dispute arises in an international context. This landmark case underlines the liberal attitude towards international arbitration adopted by U.S. courts-also with regard to claims for violations of US securities laws, the Racketeer Influence and Corrupt Organizations Act and the Age Discrimination in Employment Act-and the emergence of an international ordre public.23
The lesson to be learned is that a Claimant who is party to an agreement to arbitrate possible disputes and who is anxious to see the arbitration move forward, will be better off in countries such as the U.S.A. if the opposing party makes an objection to the effect that the dispute is not arbitrable. Whereas in some countries the objection may lead to substantial delays in the arbitration until a local or an appeal court has decided on the arbitrability of the dispute, the arbitrators sitting in the U.S. or applying U.S. law need not be impressed by arguments that the dispute concerns antitrust matters, was not contemplated by the parties when they signed the arbitration agreement, and is therefore not arbitrable. The careful choice of the place arbitration, and possibly of the applicable law, may make an important difference to a party wishing to avoid litigation in court on an antitrust objection brought by the other party to the contract. An arbitration clause may not of course prevent the competent American authorities from starting an antitrust case in court against a party, but the arbitration clause will effectively prevent bona and mala fide objections on antitrust grounds from the party who signed the agreement.24
B. Form and validity of the agreement to arbitrate
1. Developments in the eighties in Egypt may have placed doubts in the minds of parties and arbitral institutions who thought that reference in a contract, involving an Egyptian and a foreign party, to a standard set of arbitration rules, such as those of the ICC, is always effective and can be compelled.
According to a theory advocated in Egyptian circles, Article 502(3) of the Egyptian Code of Civil Procedure ("ECCP") requires the arbitrators to be named in the arbitration agreement. Therefore, when the ICC International Court of Arbitration appoints the arbitrators (which is its duty under the Rules unless the parties themselves choose the arbitrator), this would not comply with the requirements of Article 502(3).
After 1983, the Egyptian defendant in arbitration, in a number of cases, sought court orders to stop and/or invalidate the arbitration proceedings. Legal proceedings were to follow not only against the other party in the arbitration, but also against the ICC, its Court of Arbitration and its National Committees.
But new Egyptian legislation is underway since several years. A draft law25 was approved in 1988 and if enacted, will hopefully clear the present [Page13:] ambiguous situation and make Egypt a suitable forum for the arbitration of international disputes.
2. Developments in the eighties in Syria, see the cases Anvers, BNP, Omnium and Entrepose, may put doubts in the minds of parties as to whether Syria is an appropriate place of arbitration.26.
The interpretation and application by Syrian Courts of the ordre public-concept, and its use to invalidate an ICC clause and refuse enforcement of ICC arbitral awards, has been critically reviewed.
3. Although Brazil has not (yet) adhered to the New York convention, recent jurisprudence from the Brazilian Federal Supreme Court in Companhia de Navegaçao Lloyd Brasilieiro v. AS Ivarans Rederi makes it clear that an arbitration clause included in an international contract is enforceable as such and eliminates the jurisdiction of Brazilian state courts.27
Reference in the Supreme Court decision was made to Brazil's adherence to the 1923 Geneva Protocol. The place of arbitration was in Rio de Janeiro, Brazilian law applicable to the substance of the dispute and the defendant party had participated in the arbitration without raising any objection until after the award.
C. Local court intervention in arbitration
Developments in English law in the seventies and the early eighties made London a more attractive place for the conduct of an international commercial arbitration.
The 1979 Arbitration Act abolished both the right to set aside an award for "error of fact or law on its face" and the "special case" procedure. A limited right of appeal to the High Court on questions of law was introduced instead. Therefore in most cases the award of the arbitrators is now final and binding with no appeal possible.
Another improvement in the 1979 Act was the possibility for parties to agree on the exclusion of a right to appeal to the courts. Parties to international contracts may do so at any time, even in the arbitration agreement itself. In Arab African Energy Corporation Ltd v. Olieprodukten Nederland B.V.,28 and in Marine Contractors Inc. v. Shell Petroleum Development Co of Nigeria Ltd29 it was confirmed that the adoption of the ICC Court of Arbitration Rules operates as an exclusion agreement under the 1979 Arbitration Act, by virtue of Article 24 of the ICC Rules.
The ICC's earlier hesitation to fix arbitrations in London because of the "security for costs" scheme applied by English courts, has been dispelled by the Court of Appeals' decision in Bank Mellat v. Helleniki Techniki.30 English courts should now be reluctant to order security for costs in international arbitration unless in the particular circumstances there is some more specific connection with England than the mere fact that the parties have agreed that arbitration is to take place there. This is reassuring since many of the cases where the parties choose London, or where the ICC would choose London as a place of arbitration, are between non-English parties.31
In Ireland a "special case" may be stated to the High Court under the Arbitration Act 1954.32 The existence of the case stated procedure is said to contribute to the practice of arbitrators avoiding giving reasons for their awards.33 In [Page14:] ICC arbitrations all awards should be reasoned, this is one of the cornerstones of the system and ICC awards rendered in Ireland will therefore be reasoned. The "case stated" procedure, if it would lead to delays, could have an impact on the ICC Court's choice of place of arbitration.
The Belgian Law of March 27, 198534 worked an important amendment to the provisions of the Belgian judicial code concerning arbitration. Pursuant to such law, Belgian tribunals may only hear a request for annulment of the arbitration award if at least one party to the dispute in question in the arbitration award is either a natural person having Belgian nationality or residence in Belgium, or a legal person constituted in Belgium or having any branch or office of business in Belgium.
This law does not change the judiciary's role in arbitrations taking place in Belgium until the time of the award. At that point, a Belgian Court of Law is no longer competent to hear a request for the annulment of an arbitration award unless one of the parties to the dispute is Belgian as defined by the law. The Belgian move is a radical one, at the extreme end on the scale of non-interventionism by national courts.
Certain commentators have raised the question as to whether an award made in Belgium under the new law would encounter difficulties regarding enforcement under the New York Convention.35 Parties should watch with greatest attention what will happen abroad at the stage of enforcement of arbitral awards made in Belgium.
In Sweden and Switzerland it is now possible for parties to exclude recourse to the courts in certain circumstances. As regards Sweden, this follows from a Supreme Court decision made in 1989 in Solel Boneh International Ltd (Israel) and Water Resources Development Intl (Israel) v. The Republic of Uganda and the National Housing and Construction Corporation (Uganda).
As regards Switzerland, the exclusion agreement is made possible by the legislation introduced in 1987, the Swiss Private International Law Statute.
In both countries, it seems, the mere fact that the parties have agreed to an ICC clause is not sufficient in order to be considered as an exclusion agreement, although Article 24(2) of the ICC Rules provides that the "parties shall be deemed to have undertaken to carry out the resulting award without delay and to have waived their right to any form of appeal insofar as such waiver can validly be made". The agreement to exclude recourse must be made in express terms. Jurisprudence in this area will be welcome.
Despite Germany's reform of its arbitration law in 1986-removing the requirement that all arbitrators must sign the award; signature by the majority is now sufficient-Germany is seldom chosen as place of international arbitrations. Germany is now considering adopting the UNCITRAL Model law.36
For the time being the action to have an award set aside may not be excluded by the parties.37 The stipulation in Article 24(2) of the ICC Rules relates only to internal appeal procedures to a second arbitral instance but do not affect a party's right to apply to the Court in an action to have the award set aside. This can only be excluded by agreement after the award has been made. However the right to have the award set aside for lack of reasons can be excluded in advance by agreement.38
A non-interventionist attitude may be illustrated by Canadian legislation with respect to the challenge and replacement of arbitrators. [Page15:]
The Rules of the ICC International Court of Arbitration provide that if an arbitrator is challenged, the ICC Court shall make a decision and that such decision is final. The parties thus agree when submitting to ICC arbitration to exclude the jurisdiction of local courts in this respect. The first country to adopt the UNCITRAL Model Law, Canada, has decided to follow the non-interventionist road. The Province of British Columbia's legislation of 198039 contains provisions ensuring respect for existing arbitral institutions. The local court may refuse to decide on a challenge of an arbitrator if the party making the request had an opportunity to have the challenge decided by an organization or institution other than the arbitral tribunal (Section 13.5). Such a provision aims at giving maximum authority to the various bodies regulating institutional arbitration, such as the ICC and the AAA.40
Singapore's legislation is modelled after the UK Arbitration Acts and provides for a limited right of appeal on questions of law under certain conditions. Important to know is that in international arbitrations parties may validly exclude appeals on the award or the determination of a preliminary issue of law.41 There remains to be seen if a standard ICC clause constitutes an exclusion agreement, like in England.
Article 24(2) of the ICC Rules was considered a bar to review of an arbitral award for error of law on the face of the award in New Zealand (see the decision of the Court of Appeal of New Zealand in CBI New Zealand Ltd v. Badger N.V. and Chiyoda Chemical Company Ltd on December 8, 198842). The contract stipulated arbitration in Wellington, New Zealand and the application of the laws of New Zealand. The President of the Court of Appeal in a detailed obiter dictum clarified the governing policy, which will be of useful guidance to parties and institutions fixing a place of arbitration in New Zealand. Firstly, the decision was limited to error of law; excess of the Terms of Reference and misconduct of the arbitrator will remain open to challenge. Secondly, Article 24 of the ICC Rules cannot oust a New Zealand court's jurisdiction to state a case, but it is a discretionary jurisdiction and the court should decline a case stated where it is satisfied on the construction of the arbitration agreement that the parties intended that there should be no form of appeal on questions of law. Thirdly, where there is manifest inequality in bargaining power so that one party is virtually forced to submit to an ouster or waiver clause, there could be room for accepting review (the president added that it seemed highly unlikely that such a situation would arise in connection with agreed ICC or other international arbitrations). Fourthly, it should normally not matter whether the alleged error appears on the face of the award or not. Fifthly, the discretionary power of an arbitrator to state a case on a question of law is not affected (such a possibility for the arbitrator is however not provided for in the ICC Rules-my remark). The Court of Appeal decision is a welcome clarification which should make New Zealand a convenient place of arbitration.
In National Construction Company v. West Pakistan Water and Power Development Authority, the Supreme Court of Pakistan on June 8, 1987 confirmed that a court may not review an arbitral award on the law or the facts: "... an arbitration in substance ousts the jurisdiction of the Court, except for the purpose of controlling the arbitrator and preventing misconduct....".43
In contrast to the development in many countries, giving greater autonomy for arbitrators in relation to the courts, are countries in the Arab Middle East such as Jordan and Saudi Arabia. The Jordanian Court of Cassation is reported to have decided that state courts have power to review arbitral awards as to the merits.44[Page16:]
D. Several parties and multiple causes of action
1. The resolution of all major disputes which may arise in connection with a large industrial or construction project in a single comprehensive arbitration proceeding presents a number of advantages. The danger of inconsistent results, always present where related disputes are resolved in separate proceedings, whether before an arbitration tribunal or before a state court, is avoided. All of the relevant evidence is made available to the Tribunal before whom each of the various disputes are brought. The cost of resolving all of the disputes arising in connection with a single project in a single proceeding can be significantly lower than the cost of engaging in a series of separate or distinct proceedings.
There are also, however, disadvantages. A party may not be willing to have its relationships with his contract party revealed to other parties, which would be the case if all the disputes were treated together. Information of a confidential character, e.g., inventions, know-how, marketing, cost margins and financial information are sensitive areas in this respect.
2. In some countries the courts have authority to consolidate several arbitrations into one single arbitration, even though to join two arbitrations without the consent of all parties involved will be contrary to the modern trend in international commercial arbitration which holds that primacy should be given to the wishes of the parties.45 Each contracting party is well-advised to inform itself in advance before choosing a place of arbitration, or when discussing a choice with an arbitral institution, on the risk he runs or the opportunities that exist-depending on how one views it-that his case will be joined with that of other parties although this may not have been contemplated when he entered into the arbitration agreement. The practice regarding consolidation differs widely from one place of arbitration to another.
In the U.S., courts have taken different views with respect to the question whether consolidation is possible in the absence of a clear agreement between all the parties. Recently, in Clipper Gas, a New York District Court consolidated two arbitrations between the ship-owner and each of two parties who both chartered the ship, where there were common questions of law and fact in the two arbitrations.46 The three-man arbitration panel that had been appointed to hear the first case was disbanded and replaced by a five-man panel in order to offer the third, joining party the same opportunity to nominate the arbitral panel as the two other parties had been given.
Consolidation has been ordered also by Australian courts.47
The Netherlands Arbitration Act 1986 provides for consolidation of related arbitrations on the order of the President of the District Court of Amsterdam. The Act permits parties to opt out of any consolidation of their arbitration with another arbitration.
3. Multi-party arbitration, the Achilles heel of international contract relations, gives rise to special problems, particularly in the absence of agreement between all parties concerned in relation with the setting in motion of the proceedings. The ICC Commission on International Arbitration set up a working party ten years ago which is still wrestling with the task of drafting practical guidelines for multi-party disputes.
Paris, or any other place in France, may no longer be such a favoured choice as it has been to parties contemplating the arbitration of disputes involving more than two parties. A recent decision by France's Supreme Court (Cour de cassation), in Siemens AG and BKMI Industrieanlagen Gmbh v. Dutco Consortium Construction Company Ltd (the Dutco Case),48 will have far-reaching effects on the drafters of consortium and joint-venture agreements.
The facts of the case have been reported and commented upon in various legal journals and [Page17:] will not be reproduced here.49 (See also the Note from the Secretariat of the ICC Court published in this issue.) Will the principle enunciated by the Supreme Court-all parties' equal right in the appointment of the arbitrator(s)-in the short term lead to more frequent appointments of a sole arbitrator, where the parties to a multi-party arbitration cannot agree on the persons to be appointed as co-arbitrators? Or, where three arbitrators are to be nominated, will the future see them all appointed by the ICC Court?
Such a development would be unfortunate, since one of the basic arguments in favour of arbitration is the existence of the parties' influence on the choice of the persons who shall sit as judge. The impact of Dutco may be that arbitration as such will suffer because of the uncertainty regarding what is contractually possible to agree. The commentators agree that the French Supreme Court has gone too far. Parties and their counsel throughout the world have been left with an important practical problem to handle in contract drafting. Further jurisprudence from French and other jurisdictions is urgently welcome to clarify the issue.
E. Rules of evidence
"There's more evidence to come yet, please your Majesty", said the White Rabbit, jumping up in a great hurry: "this paper has just been picked up". "What's in it?" said the Queen.
"I haven't opened it yet", said the White Rabbit; "but it seems to be a letter, written by the prisoner to-to somebody".
"It must have been that", said the King, "unless it was written to nobody, which isn't usual, you know".
(Alice's Adventures in Wonderland, Chapter XII)
1. In international arbitration there is a wide flexibility-or uncertainty-relating to the procedure. One aspect of the procedure is whether a case can be proved at all without certain litigation tools. This problem becomes particularly acute in non-contract claims such as those which have been expanded by the United States Supreme Court in the Mitsubishi case (see supra). Antitrust cases can rarely, if ever, be proved by the plaintiff from his own knowledge of documents. All questions of the defendant's motives and conduct are necessarily in the possession of the defendant. The definition of the competitive market can usually be determined only by reference to the defendant's materials and, more often, by reference to the materials in the possession of others. While resort to expert testimony solves certain of these difficulties of proof, the fact remains that many plaintiffs may be entirely unable to prove the elements of an antitrust claim if they do not have access to materials other than those in their own possession. While the arbitral forum may provide such access in some instances, it is not available as of right at each and every place of arbitration.
Many claims-apart from antitrust claims-necessarily require access to the other party's documents and cross-examination of its employees and agents. It is advisable that unless the parties specifically agree thereon in the arbitration clause or make reference to a set of rules providing therefore-such as the IBA Rules of Evidence-some form of access to the opposing party's documentation, as well as mandatory right to cross-examine its witnesses, be managed within the framework of the arbitration.
It is well known that an important difference exists in the approach to discovery between the adversarial system of common law jurisdictions and the inquisitorial system of civil law jurisdictions. While, in litigation, the parties have little chance of escaping the system that applies at the court where the dispute is tried, in arbitration, there is certainly more freedom for the parties to choose, and to agree with the arbitrators as to whether and to what extent cross-examination and discovery should be allowed. The extent to which one or the other system will apply may, however, be a question of the choice of place of arbitration, namely in case the parties cannot agree and the arbitrator is influenced by local procedure when conducting the arbitration. The influence on the arbitrator may be particularly strong where parties' counsel are local and wish to apply the procedure with which they are accustomed. [Page18:]
3. England is said to apply the same strict rules of evidence on arbitrators sitting in England as those applying to English Courts.50 The rules regarding the admissibility of evidence are part of the law to which arbitrators-including foreign arbitrators ruling on a dispute between non-English parties-are bound. The English law of evidence includes the parole evidence rule, the prohibition of hearsay evidence and inadmissibility of evidence on pre-contract negotiations and post-contract behaviour. This rigid approach to international arbitration-and the domestication of international contracts in general-has been strongly criticized, since it leaves no margin to foreign business parties accustomed, as they may be, to quite different standards of evidence in commercial disputes.51 The English approach to evidence may be favoured by some parties and disliked by others; it is at least something that foreign parties should be aware of when choosing London as place of arbitration.
4. The choice of place of arbitration is simultaneously a choice of the courts to which recourse against the award may be available. When selecting France, parties should be aware that French Courts, which have generally a favourable attitude towards international arbitration, may apply, in a setting-aside procedure, their own domestic standards of review of the facts of the case. This happened in the Pyramids case,52 where the French Court of Appeal, consistent with French Court practise, gave no credibility to a testimony of a director representing one of the parties, although the arbitrators had accepted that person's testimony.53 The final result might have been different had the arbitration taken place in England or Sweden, for example, where a reviewing court would not have been likely to disregard findings based on the testimony of an executive of one of the parties. The place of arbitration is important.
F. Party's failure to pay his share of the advance on the costs for the arbitration
In most arbitrations, whether they are conducted under institutional rules or ad hoc, it is customary to require an advance in respect of the amounts necessary to meet the fees and expenses of the arbitrators and the costs of the arbitral institution.54 It is also customary that the advance be paid by the parties in equal shares. In ICC arbitration the Rules require that each party pays its share of the advance. The then Secretary General of the Court, Stephen R. Bond, elaborated on this in his circular letter dated January 1, 1988, reproduced in the Secretariat's Note to All Parties of January 1, 1993: "It is appropriate to note in this connection that it is not an accepted practice in ICC arbitrations for a party to refuse to pay all or part of its share of the advance on costs and to leave it to the other party to pay for the defaulting party. While the ICC will permit a party to pay the balance of the advance on costs in lieu of a defaulting party in order to allow the arbitration to go forward, this should in no way be seen as an acceptance or endorsement by the ICC of the non-payment by a party of its share of the costs."
From my recent experience, in a growing number of cases today, ICC and others, the defendant party does not pay its share of the advance. The ICC Rules provide two mechanisms to deal with such situations. One is the fixing of separate advances for the claim and the counterclaim, where a counterclaim has been introduced. The other is to allow the claimant to pay the defaulting defendant's share in order for the arbitration to proceed.
A claimant who pays the defendant's share may not be willing to wait for the final award and its ruling on costs, but look for means of obtaining earlier payment by the defendant of its share of the advance. The claimant may then be better off [Page19:] if the arbitration takes place in Switzerland or Germany than elsewhere (I). Another claimant may not be in a position to pay the defaulting defendant's share of the advance-a not entirely impractical case in times of recession. He may then wish to opt out of the agreement to arbitrate. In such a situation the claimant may be better off if the arbitration takes place in Sweden (II).
I. Claimant requests a decision ordering the defendant to pay its share of the advance.
In Germany, the claimant who pays the share of the advance in lieu of the defaulting defendant, and who thus has a claim on an amount due, could request the arbitrator to make a ruling ordering the defendant to pay its share.55 Such a ruling could be in the form of an interim award, with the well-known effects of an award (enforceability under international conventions, possibility of setting-aside etc.). By precaution, the claimant's claim may be included in the Terms of Reference if the arbitration is held under the ICC Rules, in order to avoid doubts as to the arbitrator's jurisdiction to deal with it.
In Switzerland, under the former Zurich Procedural Code Article 247, Para 3, the arbitrator could order the defaulting party to pay its share.56 This is said to be possible also under the newer federal Swiss legislation, the Swiss Private International Law Statute of December 18, 1987, Article 183.57 Other Swiss commentators are however not so explicit.58 Unlike the situation in Germany, a provisional measures decision in Switzerland would not be in the form of an award,59 and thus not enforceable under international conventions. But the arbitrator can, by virtue of Article 183 of the New Swiss Statute, "request the assistance of the competent court".60
II. The claimant is unable to pay the share due by the defendant-can he opt out of the agreement to arbitrate?
A claimant in difficult financial circumstances may simply not be able to pay the defaulting defendant's share of the advance. Because of the existence of an arbitration agreement, he is a priori barred from taking his claim to it court of law. The situation is blocked, and the arbitrator will not proceed with the arbitration until the full advance has been paid. Can the claimant treat the arbitration agreement as terminated?
Under the Swiss Konkordat this was possible.61 It seems less evident under the 1987 Statute. In German law the claimant could terminate the arbitration agreement by giving notice.62
In Sweden the doctrine is divided on the question as to under what conditions the arbitration agreement can be terminated. Some authors assert that ordinary principles governing contracts are applicable. 63 Others assert that there exists no principle in Swedish law that would authorize termination of the arbitration agreement in the situation where the defendant refuses to pay its share and thereby violates either an express provision of the arbitration agreement or the rules to which the agreement refers.64
The issue is expected to be decided by the Supreme Court of Sweden shortly. In Jon Warmland v. Pro Racing AB, a case administered under the rules of the Arbitration Institute of the Stockholm Chamber of Commerce (which provide for the payment by each party of half of the advance on costs), the Institute dismissed a request for arbitration after the defendant had refused to pay its share of the total advance of SEK 75,000 (USD 12,000) and the claimant did not pay the missing share. Claimant took the dispute to Swedish court, [Page20:] which upon defendant's motion dismissed the action, considering that the arbitration agreement was still in force and not breached by the defaulting defendant, since the Stockholm Chamber of Commerce rules do not stipulate an unconditional duty for each party to pay.65 One judge dissented, considering that the defendant after having failed to pay its share of the advance is estopped from relying on the arbitration agreement in order to stop the claimant's court action. The Stockholm Arbitration Institute has opined to the Supreme Court that the situation is a déni de justice unless the claimant can opt out of the agreement. The decision by the Swedish Supreme Court will be of great interest for parties considering arbitrating in Sweden.
G. Local restrictions on counsel and arbitrators
The ability of a party's regular counsel to represent it in an arbitration that takes place outside the party's ordinary jurisdiction, is one important advantage of international arbitration which certainly contributes to its popularity. It is the accepted practice in most countries where international arbitrations are held, that foreign lawyers can appear as counsel or arbitrator although not a member of the local bar or trained in the legal system at the place of arbitration.
There are exceptions, however, to this rule. The best known until recently, because widely discussed, is perhaps Singapore, where the High Court in a 1988 decision in Buildings Federal Ltd and Joseph Gartner & Co. v. Turner (East Asia) Pte Ltd held that a New York law firm could not represent its client in an international arbitration in Singapore. Following the international reactions on the High Court decision (Singapore was not a viable choice of forum for international arbitrations and would not be chosen by the parties)66 an amendment to the Legal Profession Act was made in 1992.67 Henceforth foreign lawyers can represent their clients in Singapore in arbitration in which the law governing the dispute is not Singapore law.
The question arose recently also in the province of Quebec, Canada. It has been confirmed by the Quebec Bar that foreign counsel may represent its clients in arbitrations in Quebec.
Courts in Malaysia, Barbados and the USA have confirmed the general practice that foreign lawyers may appear in arbitrations.68
Hong Kong arbitration law expressly states that anyone may act as a party's representative in arbitration.69
The recent Tunisian law stipulates that nobody can be excluded as arbitrator because of his nationality, unless the parties have agreed otherwise.70
Doubts subsist with respect to some countries though, e.g. Japan, Korea and Saudi Arabia, who uphold requirements of nationality and/or residence for a person to serve as arbitrator.71 Saudi Arabia also requires arbitrators to be male and of Islamic confession.72 This all seriously restricts the choice of arbitrators in an international dispute and is likely to discourage foreigners from fixing the site in these countries.
H. Available remedies
A lively issue in the U.S.A. is whether arbitrators have authority to award punitive damages. The Federal Arbitration Act does not address the question and U.S. courts are divided.73 In line with the expansion of arbitrable issues the U.S. courts have become more tolerant of permitting arbitrators to award punitive damages generally, and not only in antitrust and RICO claims. The parties to the arbitration agreement can agree that punitive damages should not be awarded.74 Parties should be aware of this when drafting the [Page21:] arbitration agreement; it is doubtful whether awards carrying punitive damages will be enforceable in many jurisdiction outside the U.S.A.
Punitive or exemplary damages can be awarded by courts of law in Australia.75 It is considered that it should be possible for arbitrators applying Australian law, where the situs is in Australia, to do the same.
Conclusions
In conclusion, there are still differences in the approaches taken in various countries, as to the arbitrability of disputes, the extent to which a court should intervene in the review of arbitral procedures and arbitral awards, what evidence may be produced, the consolidation of separate arbitrations, the qualifications of counsel and what remedies are available. Such differences may have a profound effect on the duration, the expense, and the outcome of an arbitration, and lawyers preparing an international contract will be well-advised to consider carefully the advantages and disadvantages of the available choice of locations.
1 ICC publication no. 21, Rules of Conciliation and Arbitration, 2nd edition, October 21, 1922, Secretariat General, 33, rue Jean Goujon, Paris.
2 Frederic Eisemann: "The Court of Arbitration; Outline of its changes from inception to the present day", in 60 Years On: A Look at the Future, ICC publication no. 412, Paris, May 1984, p. 395.
3 Eisemann, ibidem.
4 Eisemann, ibidem.
5 Article 16, Rules of Conciliation and Arbitration, in force on 1st June 1955.
6 Article 18 of the rules referred to under the preceding note.
7 Article 11 of the 1975 Rules, ICC publication no. 291, and of the 1988 Rules, ICC publication no. 447.
8 ICC Rules, 1988 edition, Article 26.
9 Extracts of the award have been published and commented by Sigvard Jarvin in 2 Journal of International Arbitration 1, 1985, p. 75.
10 The English law has since changed. Under the Foreign Limitation Periods Act (1984), where a foreign law applies, the rules of that foreign law relating to limitation should apply.
11 See for example, UNCITRAL Arbitral rules, Article 16. However, arbitration under the ICSID Rules takes place in Washington and the approval of the Secretary-General of the ICSID and the arbitrators must be obtained if the arbitration is to be held elsewhere.
12 Published in Arbitration in Sweden, Stockholm, 1984, 2nd edition, p. 205.
13 Jean-François Bourque in 4 the ICC international Court of Arbitration Bulletin (the "Bulletin") 1, May 1993, page 7.
14 3 Bulletin 1, May 1992, p. 7.
15 Op. cit., ibidem.
16 Jean-François Bourque, op. cit., ibidem.
17 Jean-François Bourque, op. cit., ibidem.
18 Nearly all the major trading nations are parties to the New York Convention. But there are notable exceptions, such as Brazil, Iran, Irak, Portugal, Saudi Arabia, Taiwan and Venezuela.
19 The Model Law came too late to have any impact on the new Dutch and Swiss legislations. The Model Law was considered, but not adapted, by Finland when the Finnish parliament decided a new law which took effect on November 1, 1992 and by Tunisia when it adopted a law on arbitration on April 26, 1993. It was closely followed by Mexico in its new law of July 1993.
20 Available from the IBA London office.
21 Jacques-Michel Grossen: "Arbitrage et droit de la concurrence", in Recueil de travaux suisses sur l'arbitrage international, Schultern Poly-graphischer Verlag, Zürich, 1984, pp. 38, 39.
22 Professor Berthold Goldman: "The Complementary Roles of Judges and Arbitrators in Ensuring that International Commercial Arbitration is Effective", in 60 Years On: ICC Publishing S.A., 1984, Paris, p. 271.
23 The Mitsubishi Case: 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed. 2d 444 (1985); Comments on the broadening of arbitrable issues by Gary D. Sesser: "Choice of Law, Forum Selection and Arbitration Clauses in International Contracts", in International Business Lawyer, September 1992, pp. 397-400.
24 Some commentators have taken a more prudent view on the arbitrator's authority when dealing with an antitrust matter, see Prof. Hans Smit: "Mitsubishi: It is not what it seems to be", in 4 Journal of International Arbitration 3, p. 7. A comprehensive bibliography of the Mitsubishi case can be found in footnote 7 of Prof. Smit's article.
25 A preliminary Bill was prepared by Dr Mohsen Shafik for submission to the panel set up by decree emanating from the Minister of Justice on 12 March 1986 comprising, in addition to Dr Shafik, the following persons: (1) Mahmoud Samir El-Sharkawy, Cairo University, (2) Mohamed Ibrahim Abou EI-Enein counsellor of the Higher Constitutional Law Court, and (3) Sarnia Rashed, Cairo University. The Egyptian law is based upon the UNCITRAL Model Law, see El-Sharkawy in his article "The Arab Perspective", in Conservatory and Provisional Measures in International Arbitration, ICC Publication no. 519, 1993.
26 Report by Antoine Moussalli in Revue de droit des affaires internationales, No. 3, 1991, p. 401. Mr Moussalli concludes: "On peut trouver l'ordre public là où on le désire, quitte alors a le dénaturer!".
27 Report and comment by Carlos Nehring Netto, Sueli Avellar Fonseca and Isabel Zivy; "A Very Important Brazilian Judgement on the matter of International Arbitration", in Revue de droit des affaires internationales, No. 7, 1992, p. 872.
28 [1983] 2 LLR 419.
29 [1984] 2 LLR 77.
30 [1983] 3 LLR 428.
31 However in one subsequent case an opposite decision was made, see K/S AS Bani v. Korea Shipbuilding & Engineering Corporation [1987] 2 LLR 445. The English Court of Appeal held where both parties were foreign but had claimed a traditionally English form of marine arbitration in London that an order for security for costs would be made. More recently, in two decisions rendered on respectively September 3, 1992 and October 8, 1992 in Voest-Alpine A.G. (Austria) v. Ken-Ren Chemicals and Fertilizers Ltd (Kenya), a supply contract subject to Austrian law, and Coppee Lavalin SA/NV (Belgium) v. Ken-Ren Chemicals and Fertilizers Ltd (Kenya), a construction contract, both arbitrations under the ICC rules, the High Court of Justice dismissed applications for security for costs on the ratio decidendi of Bank Mellat (1992 Folio 2168 and 2268). The defendant has sought leave to appeal.
32 James Bridgeman: "International Arbitration of Intellectual Property Disputes", in Irish Law Times, May 1993, p. 104, footnote 48.
33 Bridgeman. op. cit., ibidem.
34 The text of the law and a comment hereon by Lambert Matray was published in XI Yearbook Commercial Arbitration, 1986, p. 57. See in the French language Prof. Storme: "Proposition de loi relative à l'annulation des sentences arbitrales", in Revue de l'arbitrage 1985, no. 3, page 461 et seq.
35 Jan Paulsson: "Arbitration unbound in Belgium", in 2 Arbitration International I, page 68. Alain Vanderelst: "Increasing the Appeal of Belgium as an International Arbitration Forum?", in 3 Journal of International Arbitration 2, p. 77.
36 Klaus Peter Berger: "International Economic Arbitration in Germany: A New Era", in Mealey's International Arbitration Report, July, 1992, p. 21.
37 Berger, op, cit. page 20.
38 Berger, op. cit . ibidem, with reference to German jurisprudence.
39 The International Commercial Arbitration Act (S.B.C. 1986, c. 14).
40 The Hon. Marc Lalonde, P.C., Q.C.: "The New Environment for Commercial Arbitration in Canada", an article published in The Review of International Business Law.
41 Messrs. Ang's, Cheo's and Tan's report in "Peaceful Solutions", special supplement to the May 1993 issue of International Financial Law Review, page 18.
42 Reported by Tomas Kennedy-Grant in 1991 International Construction Law Review, page 291.
43 P.L.D 1987 Supreme Court p. 461. Comment by Ross Masud in Revue de droit des affaires internationalise No. 4, 1991, p. 557.
44 Samir Saleh: "La perception de l'arbitrage au Machreck et dans les pays du Golfe", in Revue de l'arbitrage 1992, no 4. p. 543
45 V.V. Veeder, Q.C.: "Multiparty Disputes: Consolidation under English Law. The Vimeira-A Sad Forensic Fable", in 2 Arbitration International 4, 1986, p. 310; J. Gillis Wetter: "A Multiparty Arbitration Scheme for International Joint Ventures", in 3 Arbitration International 1, 1987.
46 P/R Clipper Gas v. PPG Industries Inc. and Georgia Gulf Corp. 92-Civ. 2181, S.D.N.Y., decision reprinted and commented in Mealey's International Arbitration Report, November 1992, page 9. The decision reproduced in Mealey contains a summary of other recent cases from U.S. courts with respect to the issue of consolidation.
47 Aerospatiale ALZ, comments by Duncan Miller in 9 Arbitration International 2, pp 178, 189.
48 Decision of January 7, 1992, reprinted in Revue de !'arbitrage 1992, no. 3, page 470.
49 E.g. in French, in Revue de !'arbitrage, 1992, no. 3, page 470 et seq., comments by Pierre Bellet, and in Journal du droit international 1992, no. 3, comments by Charles Jarrosson. In English, in Mealey's Int'l Arbitration Report, February 1992, page 20, comments by Mahir Jalili; in International Financial Law Review, March 1993, page 33, comments by Christopher Seppala, and in 9 Arbitration International 2 p. 197 et seq., comments by Jean-Louis Delvolvé. In Swedish, in Juridisk Tidskrift vid Stockholms Universitet, 1991-92, no. 4, page 716 et seq., comments by Sigvard Jarvin.
50 Professor Roy Goode: "The Adaptation of English Law to International Commercial Arbitration", in 8 Arbitration International 1, page 6.
51 Roy Goode, ibidem. The approach contrasts with that of many other countries, including the US where "there are no rigid rules on the admission of evidence in arbitrations and the arbitrators will permit most evidence to be offered and will consider it 'for what it is worth'", see David W. Rivkin and others in Peaceful Solutions, special supplement to the May 1993 issue of International Financial Law Review, page 46.
52 Arab Republic of Egypt v. Southern Pacific Properties Ltd, et. al., Court of Appeal of Paris, July 12, 1984, affirmed by Cour de cassation.
53 Christopher R. Seppala: "The Pyramids of Egypt Case", in (1985) 2 International Construction Law Review, page 180.
54 See e.g. ICC Rules, Article 9; the Rules of Procedure of the Inter-American Commercial Arbitration Commission, Article 41; the Rules of Arbitration of the Indian Council of Arbitration, Article 29; the Rules of the Italian Arbitration Association, Article 8; the Rules of the Japan Commercial Arbitration Association, Rule 45; the London Court of International Arbitration Rules, Article 15; the UNCITRAL Rules, Article 41; the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce, Article 13.
55 Peter Schlosser: Das Recht der internationalen privaten Schiedsgerichtsbarkeit, 2nd edition 1989, Mohr, Tübingen, paragraph 778.
56 Michael Bühler: "Grundsätze und Praxis des Kostenrechts in ICC Schiedsverfahren", in Zeitschrift für Vergleichende Rechtswissenschaft, 87. Band, November 1988, page 455, note 114.
57 Bühler, op. cit., ibidem. Andreas Becher, Pierre-Yves Tschanz, International Arbitration in Switzerland, 1988, Helbing & Lichtenhahn AG, Basle, pp. 86, 87.
58 Marc Blessing, Die internationale Schiedsgerichtsbarkeit in der Schweiz, Schriftenreihe DIS, Vol. I/11, Carl Heymans Verlag, 1989, page 55; Pierre Karrer: "Anmerkungen zu Artikel 182-185" in Bulletin der Schweizerischen Vereinigung für Schiedsgerichtsbarkeit 1/1992, pp. 43-44.
59 Blessing, op. cit., page 56, Gerhard Waiter: "Einige prozessuale Aspekte der internationalen Schiedsgerichtsbarkeit in der Schweiz", in Etudes de droit international en l'honneur de Pierre Lalive, Helbing & Lichtenhahn, 1993, page 710.
60 Bucher-Tschanz, op. cit. page 89
61 Peter Schlosser, op. cit. in footnote 34, paragraph 438.
62 Peter Schlosser, ibidem.
63 Professor Lars Heuman: "Skiljemäns rätt alt avskriva mål", in Juridisk Tidskrift vid Stockholms. Universitet 2/1990-91, page 317.
64 Ake Hassler-Torsten Cars, Skiljeförfarande, andra upplagan, 1989, Norstedts, page 54, footnote 5.
65 Lars Heuman in Current Issues in Swedish Arbitration, Kluwer/Juristförlaget, 1990, page 192.
66 Decision commented by David W. Rivkin in International Financial Law Review, February 1990, p. 11 et seq.
67 See Mealey's International Arbitration Report, August 1991, p. 7 and Messrs. Ang's, Cheo's and Tan's report in Peaceful Solutions, special supplement to the May 1993 issue of International Financial Law Review, page 16.
68 Rivkin, op. cit., ibidem.
69 Peter Caldwell in Mealey's International Arbitration Report, July 1991, p. 23.
70 Code de l'arbitrage, Article 56.1. The Tunisian law was promulgated on April 26, 1993 (Loi no. 93-42).
71 Rivkin, op. cit., ibidem, Caldwell op. cit., page 22.
72 Samir Saleh: "La perception de l'arbitrage au Machrek et dans les pays du Golfe", in Revue de l'arbitrage 1992, no. 4. p. 49. Hassan Mahassni: "General Principles of Islamic Law relating to International Commercial Arbitration", in 3 Special Supplement to the ICC International Court of Arbitration Bulletin 1, p. 25.
73 David W. Rivkin and others in Peaceful Solutions, special supplement to the May 1993 issue of International Financial Law Review, page 48.
74 See Rivkin and others in paper referred to in preceding footnote, page 48.
75 Duncan Miller: "Public Policy in International Commercial Arbitrations in Australia", in 9 Arbitration International 2, page 187.