This chapter on fact-finding and expert evidence considers how the Court has treated competing evidentiary claims, and how it engages in a fact-finding process, looking at the evolution of the Court’s process in this regard. The author evaluates the significant criticism that has been directed against the Court in respect of its approach to fact-finding and the ways in which the Court has begun to address those criticisms.

Despite the critical importance of applicable law in international arbitration, the concept remains misunderstood and often ignored. In the field of international investment law, whether the arbitration proceedings arise from an investment treaty or from a contract, the cornerstone principle of party autonomy applies when it comes to the choice of applicable law, as provided, for example, in article 42 of the ICSID Convention. Even that principle, however, is subject to debate, for example with respect to whether initiating arbitration proceedings under an investment treaty amounts to an implicit choice of applicable law. In an attempt to clarify the notion of applicable law, this contribution first distinguishes the rules of decision, i.e. the law applicable to the specific claims submitted by an investor against a state, from incidentally applicable law, i.e. the other laws which may be relevant for the resolution of the dispute but that do not form a basis for the decision on the merits. In a second part, this contribution analyses several questions arising from the application of choice-of-law provisions in practice, with an emphasis on article 42 of the ICSID Convention. Finally, the consequences of erring in the application of the correct applicable law are examined.

The multi-faceted role of arbitrators is complex and protean. While there is consensus on the fact that the nature of the international arbitrator’s role entails according the arbitrator wide-ranging powers and that the arbitrator also undertakes a panoply of obligations, the scope of these powers and duties is not always well defined.Views about the nature and scope of these powers and duties might diverge depending on whether arbitrators are seen as service providers, justice purveyors, or both. Following a brief overview of this core question, the contribution proceeds to identify the sources of an arbitrator’s powers. Next, the most important duties of international arbitrators, including those pertaining to ethical obligations, the need to ensure due process, the necessity to apply the proper law, the duty to provide a reasoned award, and several others are explored. This contribution also highlights the most important rights of international arbitrators, such as the right to receive good faith cooperation from the parties, as well as the rights to remuneration and immunity, amongst others. Finally, we make some observations on ways in which the rights and duties entailed by the complex mandate of arbitrators can be reconciled in the event of conflict.

This entry examines whether the existing transparency gap between the investment treaty arbitration and international commercial arbitration regimes should be maintained, considering three factors: (i) the nature of the public interest, (ii) the role of confidentiality, and (iii) the role of party autonomy. The author concludes that the transparency gap should - as a general matter - be maintained. Although the public interest in particular international commercial arbitration cases can be significant - most notably in cases involving state entities or statutory claims - on a systemic level the public interest in internationalcommercial arbitration contrasts sharply with investment treaty arbitration, where cases consistently involve state entities and challenges to government measures. Equally important, two cornerstones of international commercial arbitration also support the existing transparency gap: (i) the availability of discreet and dispassionate dispute resolution, made possible by confidential proceedings, and (ii) the primacy of party autonomy. But with respect to the public availability of arbitral awards, the author concludes that the transparency gap should be narrowed significantly, given larger developments regarding international commercial dispute resolution and public access to decision-making.

The negative effect doctrine discussed in this chapter deals with when, if ever, a state court will stay proceedings before it and refer disputants to the arbitrators for them to decide, in the first instance, whether an arbitration agreement between the parties (i) exists, (ii) is valid, and (iii) has a scope that covers the dispute in question. An affirmative answer on each of these points would mean that the dispute’s merits must be decided in arbitration. Thus, the negative effect issue concerns whether a decision on these three jurisdiction sub-issues should be decided with finality by the court itself at the outset, or, in the first instance, by the arbitrators themselves, with possible court review on jurisdiction delayed until later.The chapter discusses the dramatically different approaches to the negative effect issue followed in several leading arbitral jurisdictions: France, Germany, the U.S., Switzerland, the U.K., and Canada (Quebec).It also discusses the underlying policy issues at stake in the different national approaches to the doctrine.In conclusion the chapter offer’s the author’s view of a preferred approach to the negative effect issue.

This chapter offers a contribution to the discourse on procedural equality in international arbitration by explaining its interaction with other basic norms that govern the arbitral process and proposing a framework to assess equality claims.The principle of equal treatment or procedural equality is a core adjudicative ideal that has a long history dating as far back as the Magna Carta Libertatum. Together with the right to an impartial and independent tribunal and the right to be heard, the principle of equal treatment provides a foundation for the arbitral process that is essential to ensure its legitimacy. The principle of equal treatment pervades every aspect of the arbitral process and must be given due regard at each stage of the proceedings: at the stage of tribunal constitution, when joining additional parties, allocating time, determining the scope of privilege or allowing non-disputing third parties to intervene, among others. While the importance of procedural equality in international arbitration is today well-established, less attention has been paid to how claims of equality ought to be assessed. Drawing on jurisprudence on equal treatment protections in international human rights law, this chapter proposes a two-step inquiry that first considers whether there is a rational basis for any differentiated treatment between the parties, before analysing whether the differentiated treatment creates an unfair disadvantage.

Party autonomy is often said to be the backbone of international arbitration. This liberalist thinking rests upon the premise that arbitration is a dyadic process between two rational parties. On this view, party autonomy is not only the source of any arbitral tribunal’s adjudicatory authority; it also allows the parties to decide how that adjudicatory authority is to be exercised.

The (positive) competence-competence principle is one of the most fundamental principles of international arbitration. It provides the arbitral tribunal with the competence to decide on its own competence. These positive effects relating to the jurisdiction and the competence of the arbitral tribunal are nearly universally recognized, contrary to the consequences following from it for the jurisdiction of the state courts. Despite the positive effect’s broad recognition, its justification raises difficult questions which touch the very basics of arbitration. The entry discusses the historic and conceptual background of the principle as well as some of the controversial questions as to its scope and the form, timing and requirements of an arbitral tribunal’s jurisdictional decision, setting out the approaches adopted in the various jurisdictions.

Arbitration is known as an adjudicative process whose outcome is a binding decision on pre-existing rights. At the same time, arbitration is characterized by party autonomy and the arbitrators’ considerable discretion regarding the conduct of the proceedings. That raises the question whether arbitral tribunals, first, can be empowered and, second, can rely on their procedural or remedial powers to go beyond the boundaries of adjudication. This entry will deal with the two most prominent examples of such additional tasks assumed by arbitrators: their efforts in searching a settlement and the adaptation of contracts.In the entry’s first part, the authors outline the different approaches adopted in various national laws and arbitration rules on the role of arbitrators in the process of facilitating a settlement. Against that background, the authors discuss whether frequently used methods of settlement facilitation are authorized under different types of rules. In the second part, the authors examine the concept of adaptation either as an adaptation by interpretation or an adaptation as a process of creating wholly new provisions. In the following, adaptation clauses in the context of arbitration as well as contracts without such clauses are discussed.

The principle of party autonomy in international arbitration rests upon the premise that individuals are rational maximizers of their own welfare. However, the reality sometimes differs and a number of parties suffer from weaknesses. Such weaknesses may originate from imperfect information, from insufficient expertise of the parties in testing information against their own preferences, or from the lack of bargaining power or financial means to implement their choices in practice. There is a risk that strong opportunistic actors exploit such weaknesses for their own benefit. In a worst-case scenario, this may result in undermining the weak parties’ fundamental right to access to justice

Chapter 6 commences by exploring the extent to which recognition and enforcement approaches are likely to inform each other over time. I do so by analysing the differences in legal tradition and approaches across states that have, historically, been seen as impediments to agreeing to a harmonised global framework promoting recognition and enforcement. While this argument has less resonance now that global judgments instruments have been formally adopted, it can still be generalised to suggest that these differences may inhibit the uptake of these instruments in and by national legislatures. To determine whether this is likely to be the case, I analyse the experience of the New York Convention (with respect to arbitral awards) and the Brussels Model (with respect to judgments) in overcoming perceived hurdles expressed to arise due to differences in legal tradition and approach (e.g. between civil and common law traditions).

The second factor analysed in Chapter 6 is whether divergent rationales underlying recognition and enforcement limit the extent to which experiences or lessons learnt in one approach may fruitfully extend to others.

the general rules in EU law for choice of law in contract

the general rules in EU law for choice of law in contract