International Arbitration Law

INTERNATIONAL ARBITRATION

Introduction

• Defining arbitration:
  • Martin Domke's definition: Arbitration is a voluntary process where parties refer disputes to an impartial third person (arbitrator) selected by them, for a decision based on presented evidence and arguments. The parties agree in advance that the arbitrator’s determination (the award) will be final and binding.
  • René David's definition: Arbitration is a device where the settlement of a question of interest for two or more persons is entrusted to one or more other persons (arbitrator or arbitrators) who derive their powers from a private agreement, not from state authorities, and who are to proceed and decide the case based on such agreement.
• Constitutive elements of arbitration:
  • Mechanism for settlement of disputes.
  • Semi-consensual: in limine litis (at the beginning of a lawsuit).
  • Private procedure.
  • Involves a third person (arbitrator).
  • Has a legal character.
  • Finality: Arbitrator's determination is final and binding.
  • Res juridicata: A judge/arbitrator cannot reverse their own decision.
• Using arbitration to circumvent anti-money laundering: Example: $500,000 in the bank after a fake arbitral award. Courts will scrutinize to ensure there's a genuine dispute.
• History:
  • States were initially wary of arbitration.
  • Origins traced to antiquity, widespread in Europe by the Middle Ages.
  • Common among Merchant Guilds, Professional Associations, and at medieval trade fairs (often mandatory).
  • Decisions often based on Equity and Conscience, and the Customs of Merchants.
  • Governments and legislators were not always in favor:
    • Requirement of signing a compromis (arbitration agreement after dispute arises).
    • Invalidity of arbitration clauses in contracts.
    • No prohibition for state court to accept a case despite an arbitration agreement (only damages).
  • France:
    • Edict of 1560: Arbitration mandatory for commercial disputes among merchants.
    • French Revolution: Arbitration elevated to constitutional status.
    • Napoleon: Restrictive view, considered arbitration a danger to the rule of law.
    • Example: Cour de Cassation, Cie L’Alliance vs Prunier (1843), showcasing Napoleonic hostility.
  • England:
    • 1698 Arbitration Act: One of the first arbitration acts worldwide, aimed at “promoting trade and rendering the awards of arbitrators more effectual”.
    • Scott v Avery (1856) English House of Lords: Arbitration agreements are enforceable and binding.
    • Lord Clark's quote: “Somehow the Courts…in former times acquired a horror of arbitration…I never could imagine for what reason parties should not be permitted to bind themselves to settle their disputes in any manner on which they agreed”.
    • Confirmed in the 1889 Arbitration Act (widely adopted throughout the Commonwealth).
  • 20th Century:
    • Erosion of mistrust of arbitration.
    • 1925: US Federal Arbitration Act.
    • 1927 Geneva Convention for the Execution of Foreign Arbitral Awards.
    • 1958: New York Convention:
      • 165 Signatory States.
      • Presumptive Enforceability of Arbitration Agreements.
      • Enforceability of Arbitral Awards = free circulation and easier enforcement of arbitral awards.
    • 1985: UNCITRAL Model Law:
      • Model law, arbitration-friendly system.
• Why Arbitration?
  • Alternative to national courts: Addressing suspicion/mistrust of foreign national courts / centralization of disputes, and ensuring no interference in the merits by a foreign national court.
  • Enforceability: Supported by the NY Convention.
  • Finality: Arbitrator's decision (award) is usually final and binding.
  • Flexibility: No appeal unless explicitly agreed ( lawyers from common law x civil law understand the flexibility of arbitration ).
  • Party autonomy: Based on voluntary agreement, either through a contract clause or separate agreement after a dispute arises.
  • Choice of arbitrator(s): Parties have a say in who is appointed to the arbitral tribunal.
  • Forum neutrality: Arbitral proceedings are detached from local state jurisdiction, lowering the risk of national bias.
  • Confidentiality: Proceedings are generally private, useful for sensitive commercial information or avoiding precedents.
  • Speed and Cost: Can be faster and less expensive than traditional litigation, due to absence of appellate proceedings, though this is not always the case. Arbitration hearings are more intense (emphasis on witness statements).
• The Arbitral Process
  • Request for arbitration.
  • Composition of the tribunal.
  • Terms of reference & PO1.
  • Exchange of submissions.
  • Hearing.
  • Award.

Typology

• Territoriality:
  • Many countries have dual rules (international vs domestic arbitration) due to traditions and to attract investors.
  • Legislators' concerns: protecting citizens (consumer protection, antitrust law, criminal law) from being circumvented by arbitrators, leading to dual rules in some jurisdictions.
  • 1) International arbitration:
    Art. 1 (3) UNCITRAL Model Law: A (commercial) arbitration is deemed international if:
    * Parties have their places of business in different States.
    * Place of arbitration is situated outside the State in which the parties have their places of business.
    * Place of substantial performance or connection to the dispute is outside the State where the parties have their places of business.
    * Parties have expressly agreed that the subject-matter relates to more than one country.
  • 2) Domestic arbitration
• Procedural framework:
  • Institutional arbitration = “private court system”
    Ad hoc arb vs institutional arbitration
  • 1) Ad hoc: More procedural freedom but less legal security and higher risk of complications.
  • 2) Institutional: Less flexible but more predictable, well-organized, supported by “back-office”. Institution’s role is sometimes limited (appointing authority), but often supports the arbitration from start to end.
• Subject matter:
  • Traditional commercial arbitration.
  • Other forms of specialised arbitration:
    • Sports arbitration, construction arbitration, shipping arbitration, energy arbitration, labor arbitration
  • Investment arbitration:
    • Disputes between foreign investors and host states (typically under bilateral investment treaties).
  • Inter-state arbitration:
    • Examples: 2000 Eritrea-Ethiopia Boundary Commission; 2009 Slovenia-Croatia arbitration agreement.
    • Permanent court of arbitration

Sources

• International instruments
• National legislation:
  • UNCITRAL keeps record of states that have implemented its arbitration-friendly Model Law.
  • Examples: Part 6 on arbitration of the Belgian judicial code (Act adopted in 2013, based on UNCITRAL Model Law).
  • Some important jurisdictions did not implement Model Law due to sophisticated arbitration legislation (UK, Switzerland, NY state) or incompatibility with domestic interests/policy (China, Brazil).
• Institutional rules:
  • International Chamber of Commerce (ICC) Rules of Arbitration.
  • London Court of International Arbitration (LCIA) Rules.
  • CEPANI Arbitration Rules (Belgium).
• Other:
  • Case law – mostly from national courts (due to confidentiality of arbitration) – however, some institutions publish collections of awards, such as the ICC – investment treaty arbitration and inter-state arbitration: awards often public.
  • Scholarly literature.
  • Soft law: international guidelines, for example, those issued by the IBA.
    • IBA Rules on the Taking of Evidence
    • IBA Guidelines on Party Representation in International Arbitration
    • IBA Guidelines on Conflicts of Interest in International Arbitration

The Arbitration Agreement

Introduction

• Party autonomy:
  • Necessary condition.
  • Arbitration is a consensual dispute resolution mechanism.
  • Choice to go to arbitration over state courts.
  • Waiver of right to state court (Art. 8 UDHR/ Art. 6.1 EHCR).
  • Art. 8 UDHR: “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”.
  • Art. 6.1 ECHR: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.
  • Freedom to determine procedure, subject to due process limitations and mandatory provisions in relevant law(s).
  • Permits parties to agree on efficient procedural framework that leads to rendering of an arbitral award that is susceptible of judicial enforcement.
  • Party agreement may include reference to set of rules (Art. 2(e) ML).
  • Party autonomy may play a role at different stages + play throughout the procedure.
    • In arbitration agreement.
    • During proceedings
• Arbitration agreement:
  • Article 7 UNCITRAL Model Law (ML): “[A]greement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.”
  • Article II.1 NY Convention (NYC): “[A]n agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration”.
  • Two types:
    • Arbitration clause.
    • Submission agreement:
      In some jurisdictions, it is disallowed when there is a weaker party. In BE, for labour party, you can submit arbitration but at a later stage not in the beginning
• Effects:
  • (1) Positive: sword
    • Binding obligation of parties to submit dispute to arbitration.
    • In accordance with agreed terms (e.g. Art. 6.1 and 6.2 ICC Rules).
    • Confers jurisdiction on arbitral tribunal
  • (2) Negative: shield
    • Presumption of validity: lack of jurisdiction of state courts unless the court finds the arbitration clause is “null and void, inoperative or incapable of being performed” (Art. II(3) NYC | Art. 8(1) ML).
    • Requires initiative by a party to enforce.
    • Timing: first submissions (Art. 8(1) ML).
    • Consequence: referral to arbitration if state courts do not have jurisdiction.
    • Exception: interim measures (Art. 9 ML)- to emergency arbitration or to the courts
• 2 Important concepts to enforce the arbitral award:
  • Kompetenz-Kompetenz (“compétence de la compétence”) (Art. 16(1) ML / Art. 6(3) ICC Rules).
  • Power of AT to rule on its own jurisdiction, including on existence, validity and scope of arbitration agreement.
    *Subject to court review: one party goes to state court instead of arbitral tribunal, in certain jurisdictions they gave priority to arbitral tribunal (FR) other jurisdictions give priority to state courts (in China).
    *Priority?
  • Separability (“autonomy” / “independence”) (Art. 16(1) ML / Art. 6(9) ICC Rules)
  • Arbitration clause treated as separate agreement from main contract: if clear consent of arbitration clause, it is valid. The fact that a main contract is null and void does not mean that the arb clause also is.
  • Non-existence, invalidity or termination of underlying agreement does not (automatically) extend to arbitration clause
• Jurisdictional control by state courts at the pre-award phase? Level of control and priority?
  • 1) Minimum – Priority for AT : E.g. France – Art.1448 FCCP: “When a dispute subject to an arbitration agreement is brought before a court, such court shall decline jurisdiction, except if an arbitral tribunal has not yet been seized of the dispute and if the arbitration agreement is manifestly void or manifestly not applicable. Art. 1465 FCCP: “The arbitral tribunal has exclusive jurisdiction to rule on objections to its jurisdiction” => Remark: PWC, Fr. Cass., 20 September 2020 – consumer protection
  • 2) Medium: USC in First options of Chicago v. Kaplan (note: setting aside case) – Deference to AT’s decision if the Parties agreed to submit the question on arbitrability to arbitration. Rebuttable presumption, based on parties agreement.
  • 3) Maximum: priority for courts over ATs. E.g. China: if jurisdiction is challenged both before AT and state court, court has priority to decide.
    • Article 20 China arbitration law: Where any party challenges the effect of an arbitration agreement, he may either submit it to the Arbitration Commission for a decision or bring it before the people's court for an order. If one party submits it to the Arbitration Commission for a decision while the other one brings it before the people's court for an order, the people's court shall rule an order. The party who intends to challenge the effect of the arbitration agreement shall put forward his challenge before the first hearing of the Arbitration Tribunal.
  • 4) No priority: Model Law (Art. 8.2 ML gives right to courts to decide, but allows AT to continue proceedings) - (e.g. Belgium, Art. 1682, § 2 BJC)

Enforceable Clause

• Enforcement
  • Questions re existence, validity and scope of arbitration agreement may arise at different stages of the proceedings and in different fora:
    • Arbitral institution: prima facie existence (e.g. Art. 6(3) and (4) ICC Rules)
      • Article 6.3 ICC Rules: “3) If any party against which a claim has been made does not submit an Answer, or if any party raises one or more pleas concerning the existence, validity or scope of the arbitration agreement or concerning whether all of the claims made in the arbitration may be determined together in a single arbitration, the arbitration shall proceed and any question of jurisdiction or of whether the claims may be determined together in that arbitration shall be decided directly by the arbitral tribunal, unless the Secretary General refers the matter to the Court for its decision pursuant to Article 6(4). 4) In all cases referred to the Court under Article 6(3), the Court shall decide whether and to what extent the arbitration shall proceed. The arbitration shall proceed if and to the extent that the Court is prima facie satisfied that an arbitration agreement under the Rules may exist.”
    • Before AT: ruling on jurisdiction (Art. 16(2) and (3) ML / Art. 8(2) ML)
    • Before State Courts
      • (Parallel) proceedings (Art. 8(1) ML / Art. II(3) NYC)
      • Appeal/direct review of AT decision (Art. 16(3) ML / other solutions in some jurisdictions) : ML allows it (in some jurisdictions there is not this possibility).
    • Post-award stage
      Setting aside (Art. 34(1)(a)(i) ML).: ONLY at the place of the arbitration
• Enforcement Stage (Art. 36(1)(a)(i) ML / Art. V(1)(a) NYC) : courts will have a look at it to enforce the award in a foreign stage*
• Courts have judge d’appui and an after stage (double role)*
• Applicable law(s)
  • Existence, validity and scope of the arbitration agreement may be governed by different laws, depending also on forum (see e.g. Art. 34 (2)(a)(1) ML; Art. V.1(a) NY Convention / Art. 36(1)(a)(1)):
    a. Law chosen by parties (lex contractus)
• Separability: possibility of express choice (contract with a law A vs arb clause with law B)*
• Implied choice (?). If parties have not included choice of law for the entire contract, there are elements for implied choice. In that case, they look at the law applicable to the procedure  Implied choice? Deducted from choice of law applicable to main contract or choice of seat? e.g. UK Supreme Court 2020 (Enka v/ Chubb):*
• choice of law applicable to main contract = implied choice for law applicable to arbitration agreement;*
• Only if no express or implied choice: lex loci arbitri as law of “closest connection”*
  b. Law applicable to procedure
• In principle: lex loci arbitri (law of the place of arb)*
• Exception*
  c. Exceptions
• Capacity : who may conclude an arbitration agreement ?*
• Arbitrability- which types of disputes may be subjected to arbitration (Art.* 34(2)(b)(i)/Art V(2)(a) NYC and 36(1)(b)(i) ML) and public policy and mandatory rules (Art. 34(2)(b)(ii)/Art V(2)(b) NYC) and 36(1)(b)(ii) ML)
• Lex fori of courts at place of enforcement*
• Lex loci arbitri*
• Intensity of link with case (?)*
• (Parallel) proceedings: Art. II(3) NYC/ Art. 8(1) ML*
• Referral unless arbitration agreement “null and void, inoperative or incapable of being performed”, but no choice of law*
• Lex contractus or lex fori of court before which substantive claim is brought (or both)?*
• Requirements of form
  • Limited (if any) form requirements in most modern jurisdictions
  • Exceptions:
    • In writing? Updates 2006!
    • Article II.1 and 2 NY Convention
    • Interpretation recommendation: not exhaustive
    • Art. VII(1) NYC
    • Article 7 ML: 2 options : what can be in writing + no formal requirements
    • Burden of proof
• Beware of local specificities:
  Requirements of font (capitalized, in bold and/or underlined), place (e.g. first page) or hand signed;
  Requirements when weaker party is involved (e.g. to conclude separate contract if consumer is involved);
  Requirements to refer to arbitration clause in separate document.
• Requirements of substance
  • Capacity and related restrictions
    Who may conclude an arbitration agreement?
    Exclusions under general contract law (limitations for minors, incapacitated persons,…)
    Exclusions specific to arbitration
    Policy decisions to limit otherwise capable parties to conclude arbitration agreements (subjective arbitrability)
    E.g. exclusions or specific requirements for states / state agencies;
    Policy decisions to protect weaker parties (such as consumers) : arbitration agreement can only be validly concluded after dispute has arisen
    E.g. labour disputes/ B2C)
    Issues surrounding representation (e.g. special mandate)
    Applicable law (?)
    Art V(1)(a) NYC: “under the law applicable to them”
    Art. 34(2)(a)(1) and 36(1)(a)(i) ML: “some incapacity”
  • Consent
    Clear and binding choice for arbitration (vs. other forms of ADR and courts)
    General principles general contract law (fraud, coercion, undue influence, error, unfair terms,…)
    Issues:
    Who is bound by the arbitration agreement?
    Extension of arbitration agreement to non-signatory?
    General contract terms / complex contracts / multiple contracts
    Requirements of substance (2):
• Scope*
• Defined legal relationship : “put arbitration for any matters between us”- it is not allowed it is too far*
• Existing or future dispute*
• Contractual or not*
• Subject matter capable of settlement by arbitration*
• Which disputes may be submitted to arbitration?
  • Most jurisdictions allow for arbitration of commercial matters
  • Policy decision to reserve certain matters for state courts and prohibit arbitration (objective arbitrability)
    Differs per jurisdiction
    Examples include: administrative law; antitrust; B2C disputes; bankruptcy and insolvency; carriage of goods by sea/transportation; civil status and legal capacity; commercial agency agreements; criminal law; distributorship agreements; employment/labour law; environmental damage disputes; family law and status of persons; financial market regulations; real estate/property law; residential leases; insurance; intra- company and shareholder disputes; intellectual property rights; privatization disputes; public procurement disputes; standard form contracts; taxation;…
  • However: derivative claims dealing with economic consequences may be arbitrable
    • TBD: effect on arbitration agreement as a whole, or only jurisdiction of arbitral tribunal on (part of the) dispute?
• Equal treatment / rights of defence (?)
  • Asymmetric clauses (optional/split): one party has a choice (to go to AT, state court or state court of his counterpart while the other has not)
  • Preferential position in appointing arbitral tribunal

Effective Clause: Essentials

• Essentials
  Futher reading : IBA Guidelines for Drafting International Arbitration Clauses (2010)
• Points to consider:
  • A. Institutional or Ad Hoc
  • B. Place of Arbitration
  • C. Law of the Contract
  • D. Composition and Appointment of the Arbitral Tribunal
  • E. Language
• A. Institutional or ad hoc
  a) Ad Hoc : parties determine the rules of arbitration
• Pros:*
• Parties can determine applicable rules of procedure in full, but risk for lacunas*
• Avoids cost of arbitral institution (in part?)*
• Cons:*
• Still need to turn to third party (court, arbitral institution) as appointing authority or in case of blockage: costs and potential delays*
• Requires agreement between parties and AT on costs and fees*
• To consider:*
• Adopting specialized rules for Ad Hoc Arbitration proceedings*
• See e.g. UNCITRAL Arbitration Rules 1976/2010 (www.uncitral.org)*
• Do not adopt arbitration rules of institute without using institute itself*
  b) Institutional : arbitration administered by arbitral institution, under the rules of such institution
  i. Pros:
• Expertise of institutions in managing large disputes*
• Effective procedural framework, which can further be adapted by the Parties*
• Role: support and supervise proceedings*
• Appointment of arbitrators*
• Decides on fees and costs of AT (and manages advances)*
• Decides on challenges of arbitrators*
• Liaison between parties and arbitral tribunal*
• Efficient assistance in case of blockage (removal / replacement of arbitrator, time limits for awards,…)*
• Scrutiny of awards (ICC, SIAC, …)*
• Reduces need to turn to State courts during arbitration*
  ii. Cons:
• Increases costs (institutional fees usually percentage)*
  iii.Elements to consider:
• Reputation and experience (ICC is expensive)*
• Regional or international institutions*
• Industry/sector-specific*
• Costs (for institution/ for arbitral tribunal)*
• Practical considerations relating to parties, the contract, enforcement,…*
  B. Place of arbitration
  =/=venue of hearing
• legal concept with important implications:*
• Lex Loci Arbitri: the place of arbitration determines the applicable arbitration law, and hence:*
• Mandatory restrictions that restrict procedure (due process, but also otherwise?)*
• Restriction on arbitrability of certain disputes*
• Which courts will be able to provide support to arbitration (“juge d’appui”)*
• Which courts will decide on applications to set aside the arbitral award*
• Determines “nationality of award” under the NY Convention regime*
  Elements to consider when choosing a seat:
• Quality of arbitration law*
• UNCITRAL Model Law?*
• Standards of procedural fairness?*
• Procedural restrictions or requirements?*
• Openness and familiarity of Courts toward arbitration*
• Efficiency and availability of court support and supervision*
• Degree of control/intervention during the proceedings*
• Approach of courts to setting aside*
• Adoption of NY Convention*
• Reciprocity limitation*
• Practical/commercial considerations*
• Neutrality*
• Location*
  C. Choice of applicable law on merits
• Law to be applied by arbitrators when deciding the case*
• Ex aequo et bono/Amiable composition (Art. 28(3) ML)*
• In dispute resolution clause or separately*
• May indirectly influence arbitration parameters as well:*
• May affect choice of arbitrators and of counsel by parties*
• May, in turn, affect procedure and costs*
• Remark: sometimes separate choice of law applicable to arbitration clause itself*
  D. Composition and appointment of the arbitral tribunal
• Number of Arbitrators: uneven (1 or 3)*
• When to determine?*
• Elements to consider*
• Qualifications of Arbitrators*
• Legal, technical, language requirements*
• Caution with overly narrow descriptions*
• Never name arbitrator in arbitration clause*
• Nationality*
• Method of appointment of arbitrators*
• Involvement of institution/ appointing authority (ad hoc)*
• Trend: active role of parties*
  E. Language
• Choice of language in arbitration is free*
• Restrictions in use of languages before courts do not apply (e.g. Belgium)*
• Some translation requirements may exist for deposit or enforcement of arbitral award (Art. IV(2) NYC)*
• Elements to consider:*
• Language of arbitration same as language of the contract and dealings between the parties*
• Flexibility to deal with documentation and witnesses in other languages*
• Keep in mind for arbitrator selection*

Effective Clause: Optionals

Parties may address further points in their arbitration agreement in light of the type of agreement and expected disputes, including:
Provisions relating to (taking of) evidence (e.g. reference to IBA Rules, Prague Rules, others)
Provisions relating to confidentiality / publication
Provisions relating to other dispute settlement mechanisms (cooling off period, multi-tier dispute resolution)
Relationship to other contracts
Provisions relating to interim relief and emergency arbitrations
Provisions relating to form of procedure (e.g. documentary or online only)
Provisions relating to time limits (for Parties and/or Arbitral Tribunal)
Provisions relating to the (allocation of) the costs of the arbitration
Provisions relating to the law applicable to the arbitration agreement
Provisions relating to the finality of the arbitral award (e.g. CH, BE)
Provisions addressing local requirements at seat or place of possible enforcement
Institutional arbitration: opt-out of specific rules?

• EXAMPLES- AD HOC
• Example: UNCITRAL Rules Standard Arbitration Clause (https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/21-07996_expedited-arbitration-e-ebook.pdf)*
  Model clause:
  Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules. Note. Parties should consider adding: (a) The appointing authority shall be … [name of institution or person]; (b) The number of arbitrators shall be … [one or three]; (c) The place of arbitration shall be … [town and country]; (d) The language to be used in the arbitral proceedings shall be … . Possible waiver statement [The parties hereby waive their right to any form of recourse against an award to any court or other competent authority, insofar as such waiver can validly be made under the applicable law.]
• Example- ICC
• Standard clause: see https://iccwbo.org/dispute-resolution/dispute-resolution- services/arbitration/rules-procedure/arbitration-clause/
• “All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.”*
  Opt-in/Opt-out: [The Emergency Arbitrator Provisions shall not apply.] [The Expedited Procedure Provisions shall not apply.] [The parties agree, pursuant to Article 30(2)(b) of the Rules of Arbitration of the International Chamber of Commerce, that the Expedited Procedure Rules shall apply irrespective of the amount in dispute.] [The parties agree, pursuant to Article 30(2)(b) of the Rules of Arbitration of the International Chamber of Commerce, that the Expedited Procedure Rules shall apply, provided the amount in dispute does not exceed US$ [specify amount] at the time of the communication referred to in Article 1(3) of the Expedited Procedure Rules.] [No award or procedural order made in the arbitration shall be published.]
  The parties may also wish to stipulate in the arbitration clause:
• The law governing the contract*
• The number of arbitrators*
• The place of arbitration, and/or*
• The language of the arbitration*

Pathological Clauses

• Failure to identify arbitration institution
• “Official chamber of commerce in Paris”*
• “Arbitration Court at the Swiss Chamber for Foreign Trade in Geneva”*
• “International trade arbitration organization in Zurich”*
  Various issues arise in practice, including:
  2) Uncertainty about arbitration and litigation
  “In case of dispute, the parties undertake to submit to arbitration, but in case of litigation, the Tribunal de la Seine shall have exclusive jurisdiction.”
  “Any dispute shall be solved by arbitration, but if the parties do not agree on the award, the Tribunal of Tunis shall be competent.”
  3) Uncertainty about agreement to arbitrate
  “If despite our hopes we are unable to find a basis for agreement at our proposed meetings then we would agree with your suggestion that arbitration under the auspices of the International Chamber of Commerce of Paris would be an acceptable alternative solution”
  4) Uncertainty about applicable law
  “Disputes hereunder shall be referred to arbitration, to be carried out by arbitrators named by the International Chamber of Commerce in accordance with the arbitration procedure set forth in the Civil Code of Venezuela and Civil Code of France, with due regard for the law of the place of arbitration.”
  5) Clause too narrow and cannot be implemented
  “Any dispute arising (…) shall be settled by a sole arbitrator (…) the arbitrator shall be expert in Swiss law and in the production of Arabic bread.”
  6) Lack of defined legal relationship
  *