Chapter 5 focuses on judicial assistance for arbitration and the importance of a court’ oversight role. Courts have resources, such as coercive powers, that tribunals lack. These powers enable courts to enter orders and impose penalties on parties who fail to comply. Additionally, courts play an important oversight role to ensure that arbitration adheres to minimum standards of fairness and due process. The chapter discusses the various ways that parties may seek court assistance, including asking the court to enforce an agreement to arbitrate, compel arbitration or rule on jurisdictional issues. Courts can also provide emergency relief such as orders to maintain the status quo, attach assets, or secure costs to preserve the effectiveness of the arbitration process. Although the extent of judicial review varies among jurisdictions, in most jurisdictions, courts and tribunals have concurrent jurisdiction to grant interim measures. in general, parties may seek provisional measures from a court before the tribunal is constituted, but once the tribunal is in place, they may need the tribunal’s authorization to seek court relief, or may only seek court relief in exceptional cases.

Chapter 1 focus on the basic requirements of arbitration. Arbitration is a private system of dispute resolution that allows parties to resolve their disputes outside of the judicial system. This chapter discusses the advantages and disadvantages of arbitration. International commercial arbitration has become the standard for resolving disputes in international business transactions due to its benefits. The defining characteristics of arbitration include the requirement of consent of the parties, the use of arbitrators, and the issuance of a final and binding award. Arbitration awards are generally enforceable, and the losing party may challenge them only on narrow grounds. Enforcement of awards is facilitated by the New York Convention, which ensures recognition and enforcement in numerous countries. The regulatory framework of arbitration includes the arbitration agreement, chosen arbitration rules, national laws, international arbitration practices, and relevant international treaties.

Chapter 3 discusses the importance of drafting a well-crafted arbitration agreement to establish an effective private dispute resolution system outside of national courts. Various defects in arbitration agreements can lead to inefficiencies and disputes in the arbitration process. The chapter also discusses essential requirements for arbitration clauses, highlighting that short and simple clauses are generally sufficient, especially when using model clauses provided by arbitral institutions. The chapter also discusses the choices that parties make such as the number of arbitrators, their qualifications, the governing arbitration law, the language of the arbitration and the seat of arbitration. Additional clauses beyond the basic clause can also be added to provide more control, but its important to align any additions with chosen institutional rules to avoid contradicting mandatory provisions. Finally, the chapter discusses issues such as preliminary relief, technical expertise, multistep dispute resolution clauses, dispositive motions, legal fees and costs, confidentiality, expanded judicial review, and multiparty agreements.

Chapter 4 discusses applicable laws and rules as well as various concepts in international arbitration such as delocalization, territoriality, lex arbitri and lex mercatoria. The chapter considers various choice of law issues that arise when parties fail to chose the governing law of the contract or of the arbitration clause or if they do not choose the seat of the arbitration.. Although the arbitrator has a duty to apply the proper law, the application of the laws and rules of an arbitration is a complex process. Arbitrators have broad discretion, which is, however, limited in number of ways such as by mandatory laws, party autonomy, international principles, best practices, and by the duty to try to render an enforceable award. In the book, the author includes insights from a number of international arbitrators and counsel, who tell firsthand about their own experiences of arbitration and their views of best practices. Throughout the book, the principles of arbitration are supported and explained by the practice, providing a concrete approach to this important means of resolving disputes.

Chapter 9 focuses on parties’ attempts to set aside or vacate an award. Courts rarely overturn an arbitral award, which is considered to be final and binding. However, parties can challenge an award on jurisdictional grounds or other grounds such as arbitrator misconduct, bias or public policy. If the award was vacated because the court held that the arbitration agreement itself was invalid, the prevailing party may be able to initiate a court action on the same issue. The chapter concludes that the reason it is not easy to vacate an arbitral award is not only because the grounds for setting aside are very narrow, but also there is a judicial resistance to second-guessing an arbitral tribunal that has rendered a final and binding award. Without substantial evidence of some flaw in the arbitral process or in the conduct of the arbitrator, it would be wise for counsel not to waste clients’ resources on challenging the arbitral award.

Chapter 10 discusses some of the issues and procedures pertinent to recognition and enforcement of awards under international conventions and various national laws, as well as the limited grounds for refusing enforcement. In particular, the chapter focus on Article III of the New York Convention which requires countries to recognize foreign arbitral awards as binding and to enforce them in accordance with the provisions of the Convention. The chapter also notes that there are only a limited number of defenses against enforcement of an award under the Convention and that national courts construe such defenses narrowly. There are five kinds of defenses found in Article V(1) and two additional defenses found in Article V(2). The most important characteristic of the defenses is that they are not based on the merits. Under the Convention, a court cannot refuse enforcement of an award because the arbitrator got it wrong, either on the facts or the law. Instead, the defenses focus on the integrity of the process, fairness to the parties, and a reasonable opportunity to be heard.

Chapter 8 focuses on the enforcement of a final and binding award. It discusses the difference between orders and awards and when each is used in the arbitration proceedings. There are different types of awards that can be granted by tribunals, such as final awards, partial and interim awards, consent awards, and default awards. A tribunal has an obligation to make best efforts to produce an enforceable award. It is important that a tribunal make clear whether an award isa final award, and if so, that it ensures that the award deals with all issues in dispute between the parties. A lack of clarity could lead to requests for interpretation or even to attempts to vacate. In sum, to ensure the validity of an award, arbitrators need to take the time to craft the award carefully, to meet the legal requirements as to form and content, to make a clear representation of the substance of the award, and to ensure that the award does not exceed the scope of their authority. A highly valued aspect of international arbitration is that once an award is granted, it is enforceable and is not subject to being vacated or refused enforcement on the merits.

Chapter 6 focuses on issues of the tribunal’s appointment, qualifications, and duties - all of which bear on the integrity of the process and on the efficiency and effectiveness of the dispute’s resolution. Selecting arbitrators is a critical task that lawyers undertake to ensure a fair and efficient resolution of disputes. Considering factors such as the number of arbitrators, qualifications, availability, reputation, and selection method are essential for achieving the desired outcome in arbitration. If the parties have not agreed on a selection method, institutional rules or the arbitration institution itself will govern the process. Parties should be aware of whether they have freedom to choose arbitrators, or are limited to a list provided by the institution or if the institution will make the selection. The chapter focuses on the arbitrators’ duties and particularly their obligation to be impartial and independent and to avoid conflicts of interest. Finally, the chapter deals with when and how parties can challenge arbitrators, when they can replace arbitrators, and what immunities arbitrators have.

Chapter 7 discusses the various rules that govern arbitration proceedings and issues that may arise. The chapter focuses on the process of arbitration, including the preliminary hearing, obtaining evidence, and presenting both documentary evidence and witness testimony. Scheduling hearings should be done early in the process, considering the availability of arbitrators, lawyers, parties and witnesses. Virtual hearings became much more common during the global pandemic due to cost and time efficiency. However, challenges related to cybersecurity, data protection, technical knowledge, accessibility, and witness testimony must be addressed in virtual proceedings. The future of hearings may involve a combination of virtual and in-person elements, depending on the preference and circumstances of the parties.

Chapter 2 emphasizes the importance of arbitration agreements, their separability from the main contract, and the need for clarity and validity to ensure enforceability of an arbitration award. It also highlights ongoing efforts to modernize and harmonize the interpretation and enforcement of arbitration agreements through international conventions and model laws. First, it discusses the general characteristics of the arbitration clause. Second, it discusses the concept of separability which allows the arbitration clause to remain valid and enforceable even if the main contract is potentially invalid. Third, it discusses the issue of validity of the arbitration agreement and the fact that different courts interpret the requirements for valid arbitration agreement differently, leading to a non-uniform application of the New York Convention. To address this, UNCITRAL has made recommendation for more flexible interpretationd and has revised provisions of the UNCITRAL Model Law on Arbitration to promote harmonization in the interpretation and enforcement of arbitration agreements.