Introduction: Arbitration Law Over Borders Comparative Guide 2023
Arbitration Law Over Borders Comparative Guide 2023 is a practical and comprehensive guide providing answers and insight into how sixteen jurisdictions, ranging from established arbitral seats to those historically thought to be less hospitable to arbitration, regulate arbitration. Local experts provide insight on topics that include the requirements for validity of arbitration agreements, rules concerning the constitution of the arbitral tribunal, how local courts assist (or potentially obstruct) the arbitral proceeding, general procedural minimum requirements, rules for the validity of awards, details about post-award proceedings and enforcement of foreign awards, applicable professional and ethical rules, and the approach of each jurisdiction to third-party funding.
We hope that readers — in-house counsel, external advisors and arbitrators — will reach for this guide when considering whether to agree to arbitrate in a particular jurisdiction as well as throughout the course of an arbitration seated in a given jurisdiction. Parties will better understand the restrictions each jurisdiction imposes on their freedom to agree to arbitrate certain disputes, to choose the arbitrators, and to agree on the conduct of the proceedings; the assistance they may obtain from local courts; as well as their options regarding post-award proceedings and enforcements of awards. Counsel will be directed to the applicable professional and ethical rules they must follow and will gain necessary information to better plan their strategy for the dispute, including the local courts’ approach towards arbitration, remedies that may be sought through arbitration, potential costs in enforcing arbitral awards and considerations on third-party funding in each jurisdiction. Arbitrators will comprehend the legal requirements that they must comply with in each jurisdiction, their duties, the grounds for their removal, and their potential liability. They will also receive guidance as to the scope of their powers with respect to interim measures, taking of evidence and conduct of the proceedings. Finally, they will benefit from a clear depiction of the requirements as to the content and form of the award and any applicable time limit.
The comparative exercise undertaken in the guide also gives an invaluable retrospective on the international arbitration landscape worldwide. Many jurisdictions are harmonizing their arbitration laws with those found in well-established arbitration hubs or amending their laws to follow the UNCITRAL Model Law or other examples of international best practice.
The increasingly pro-arbitration orientation of arbitration laws in numerous jurisdictions shifts the focus away from what the law says, to how it actually operates in practice. Going forward, the main deciding factors in choosing a seat may be the efficiency of local courts and their familiarity with arbitration, the costs for the parties to request assistance from local courts or to challenge or enforce an award, the availability of arbitral institutions with modern rules and adequate resources, and the current market practice with respect to third-party funding — all topics on which the guide provides insight. The advantage of the best-established arbitral seats depends on the reliably pro-arbitration application of their laws, and to the extent that the promise of legislative reform is borne out in practice. We should see more jurisdictions emerge as “safe” seats.
We also observe the proliferation of new arbitral institutions, which reflects the increasing prominence of arbitration as a dispute resolution mechanism in many jurisdictions. These new institutions draw from the experience of the main international arbitral institutions and seek to adapt state-of-the-art rules to the customs and local practice in their jurisdiction.
The increasing prevalence of arbitration will inevitably lead to greater familiarity with the process on the part of local courts, with most jurisdictions already espousing a pro-arbitration stance by the courts towards arbitral proceedings. There is every reason for optimism that greater experience with arbitration will increase the efficiency of courts when dealing with arbitration issues and also contribute to more jurisdictions emerging as reliable seats for international arbitration.
The legal framework for third-party funding remains underdeveloped in many jurisdictions. Most jurisdictions covered by this guide lack legislation that is directly on point. Those that do, regulate to different extents and impose conditions on who may act as a third-party funder and how they may conduct themselves with respect to other participants in the arbitration. This guide aims to provide arbitration users who intend to utilize third-party funding with an overview of local practice on this issue and how it may impact the arbitral proceeding.
Finally, the guide provides a quick overview of recent trends and developments in each jurisdiction, with potential amendments to legislations on their way, innovations in institutional rules, efforts to increase diversity in arbitration and reduce the environmental impact. Taking these insights together only confirms the impression that arbitration can be expected to continue to grow, and improve, as a practice worldwide.