Introduction to practice guidelines
The following guidance has been written by the Arbitration Sub-Committee of the Panels Management Group.
Introduction to the Guidelines
1. The Practice Guidelines were originally produced by the Arbitration Practice Sub-Committee of the Institute following the passage of the English Arbitration Act 1996. They continue to be issued in relation to matters of arbitration practice.
2. However, as the Institute has increased its focus on the international aspects of arbitration, the Sub-Committee has gradually widened its interest accordingly. In 2006, the Sub-Committee reviewed all the Guidelines to ensure as far as possible that they were both up-to-date and reflected an international perspective. In many areas, the original Guidelines merely covered good arbitration practice generally and could, therefore, equally apply to proceedings taking place in other countries. Nevertheless, where the laws in main arbitration centres of the world or the most commonly used arbitration rules had a particularly noteworthy provision, the guidelines have been amended to refer to it.
3. This itself posed two further questions. First, which countries and arbitration rules should be covered? Secondly, how should the foreign or international material be presented?
4. The only accurate published statistics on volumes of international arbitration generally, rather than in any specific field, are published by the International Chamber of Commerce. They continue to show France, Switzerland, England and the USA as the seats of arbitration most commonly selected. The rest of Western Europe continues to figure prominently. For that reason, Belgium, Holland, Germany, Sweden can also be regarded as major arbitration centres. A good case could also be made for Italy and Austria. The Institute has a very significant body of members in the Far East, particularly Hong Kong. Germany, Sweden, Hong Kong and, nearer to home, Scotland, have all adopted versions of the UNCITRAL Model Law on Arbitration for international arbitration or generally. In Australia the Model Law has been adopted verbatim and, in some areas, supplemented with additional provisions. Other countries' statutes are either only slightly amended versions of the Model law or have been heavily influenced by it. For this reason, the Guidelines contain a number of references to the UNCITRAL Model Law rather than to the specific provisions of the arbitration law of Germany, Sweden, Australia or Hong Kong.
5. The choice of arbitration rules to refer to is always invidious. At present, the ICC and UNCITRAL Rules appear to be the general international rules with the highest prominence. Consequently, references will be made to them rather than other rules except where a particular provision seems to be of special interest. As ever, the Sub-Committee will be delighted to amend guidelines to refer to other rules of particular interest if told about them.
6. Inevitably, any internationalisation exercise is constrained by availability of both materials and linguistic expertise. At present, Italy and Austria fall victim to the latter. There is no reason why in the future features of law and practice cannot be added into the guidance. We would be delighted to receive additional comments and contributions from other parts of the world, notably two countries where interest in the Institute is particularly strong, Singapore and Australia.
7. At present, though, the guidelines seek to cover England, France, Switzerland, the USA (but only in relation to cases governed by the Federal Arbitration Act and the Revised Uniform Arbitration Act promulgated by the National Conference on Commissioners on Uniform State Laws ("NCCUSL")), Belgium, Holland, Germany, Sweden, Australia and Hong Kong. In each country, arbitration legislation is located in a different place. So, what follows is something of a citation guide. Having said all that, the policy of the Guidelines has traditionally been to include modest amounts of citations. Readers if they want references that appear to be missing should approach the Sub-Committee which would be happy to provide the relevant material if possible.
7.1 England, Wales and Northern Ireland
The key statute is Arbitration Act 1996. Cases are cited according to standard English citation rules.
7.2 France
The relevant legislation is in the Nouveau Code de proc J dure civile, commonly cited as "NCPC". French caselaw is cited in accordance with standard French citation rules. The French Supreme Court is referred to as the "Cour de cassation" and the various Courts of Appeal as the "Cour d'appel de" followed by the relevant location.
7.3 Switzerland
The key statutory provisions can be found in Chapter 12 of the Loi f J d J rale sur le droit international priv J or Bundesgesetz über das Internationale Privatrecht (Federal Private International Law Act). It will be cited here using the standard French abbreviation "LDIP". The Swiss Courts are Cantonal except for the Federal Supreme Court: the Tribunal f J d J ral or Bundesgerichtshof. Its decisions when reported appear primarily in the ATF or BGE (to give the German version). They will be cited here using the Swiss French citation method. (The Tribunal f J d J ral is located in Lausanne in the French-speaking part of the country.)
7.4 USA
The Federal Arbitration Actis codified in 9 U.S.C. and consists of three Chapters: general, implementing legislation for the 1958 New York Convention and implementing legislation for the 1975 Panama Arbitration Convention and applies to almost all commercial arbitrations arising out of contracts involving "commerce" in the USA. All states have their own arbitration law to govern other cases (usually based on the National Conference of Commissioners on Uniform State Laws ("NCCUSL") Revised Uniform Arbitration Act of 2000) and approximately 15 have specific international arbitration statutes. While parties can probably expressly select state law to apply instead of federal arbitration law(Volt Information Sciences v. Leland Stanford Jr. University, 489 U.S. 468 (1989)), this is extremely rare and will not be presumed to have occurred by the federal courts. Consequently, all references to US legislation are likely to be to the Federal Arbitration Act or the Revised Uniform Arbitration Act. Cases will be cited in accordance with standard US citation rules.
7.5 Belgium
Key arbitration provisions appear in the Code judiciaire or (in Flemish) Gerechtlijk Wetboek. This will be cited in French as will any court decisions in accordance with standard Belgian citation rules.
7.6 Holland
Like Belgium and France, the arbitration legislation can be found in the middle of Civil Procedure Code. Here, it is called the Burgerlijke Rechsvordering to which the text will refer in Dutch. The Supreme Court is called the Höge Raad.
7.7 Germany
Germany's arbitration legislation is contained in its Zivilprozessordnung or Code of Civil Procedure. This is cited throughout as the ZPO.
7.8 Sweden
Sweden's arbitration statute is called the Lag öm Skiljem @ n (Arbitration Act). Since many readers will be unfamiliar with Swedish, this is often referred to as the "Swedish Act". The Supreme Court is called the Högsta Domstolen.
7.9 Hong Kong
Hong Kong's arbitration statute is the Arbitration Ordinance and will be referred to as such.
7.10 Australia
The federal parliament has enacted the International Arbitration Act 1974, as amended, which implements the New York Convention, the UNCITRAL Model Law and the Washington (ICSID) Convention and is restricted to international arbitrations. All state and territory parliaments have enacted uniform commercial arbitration legislation which is primarily concerned with domestic arbitration.
8. Where a court's function is well-known even if the name is foreign, such as Cour de cassation, the Guideline will not translate the name of the Court. However, for the less well-known Courts, a translation will be provided.
9. In general, where a country's legal system is referred to in isolation, it means that the country in question has a specific provision on the subject and other countries' statutes are silent on it.
10. There are only so many ways of referring to arbitrators and parties to arbitrations. At the risk of offending over 50% of the world's population, the masculine versions of the personal pronoun will be used to denote both male and female arbitrators and parties. Repetitive use of "he or she" would have rendered the guidelines almost unreadable.
11. The preparation and amendment of guidelines to keep them up to date is a work in progress. Inevitably, very few people know another legal system as well as the one in which they were trained. So, the risk of errors is far greater when looking at things from a comparative law perspective.
Last Updated: 29 July 2009