Disputes across national boundaries have become commonplace in today's commercial world. In an effort to avoid the uncertainties and complexities of foreign courts, most international agreements provide for dispute resolution through more neutral auspices of arbitration and mediation. These alternatives to national courts are known as alternative dispute resolution (ADR) techniques and are part of the specialty of law practice formally known as international litigation.
Brus Chambers a specialist in arbitration, division of Brus Chambers has been in the forefront of international arbitration law and practice. The firms have represented transnational companies, public utilities, and major contractors throughout the world and has gained considerable experience in international law and dispute settlement.
International arbitration, ad-hoc or institutional with seat in India or overseas are represented by Brus Chambers on behalf of their client.
Brus Chambers has acted in several institutional international arbitrations under the rules of the International Chamber of Commerce (ICC), UNCITRAL, London Court of International Arbitration, Stockholm Chamber of Commerce, American Arbitration Association (AAA), and ad hoc cases. Brus Chambers specialisation in arbitration has led to close relationships with arbitration specialists in other countries when the law or procedure of some other jurisdiction becomes pertinent. For all these reasons, Brus Chambers has been frequently engaged to handle all aspects of complex international disputes or to serve as lead or co-counsel in international arbitration proceedings, where seat of arbitration is in India or outside India. Brus Chambers attorneys are well versed in the many different ADR areas. Thus, the firm can respond quickly and effectively to client needs in complex and foreign business disputes. Very often, just knowing the array of choices may shorten the time and energy required to bring the matter to an early resolution.
We have affiliations and ongoing working relationships with law firms around the globe.
Brus Chambers being a specialist in arbitration and a division of Brus Chambers, Advocates and Solicitors is widely recognised as globally pre-eminent in the field of arbitration, is a pioneer in international and domestic arbitration. Brus Chambers are experienced arbitration specialists in a wide range of industry sectors. Brus Chambers also work with international contractors and owners of projects, including sovereign states and state-owned entities, in dispute adjudication boards and similar procedures and in international construction arbitrations around the world.
Brus Chambers have extensive experience in commercial disputes dealing with all sectors involving almost all industries, have a core team of international and domestic arbitration experts who are leaders in their field. They work with ease across a wide range of industry sectors and jurisdictions.
Public international law is also relevant to our work concerning contract frustration, sovereign immunity, and international debt issues. Many of our high-value arbitrations are international trade-related.
Arbitration has emerged as the preferred mechanism for many companies seeking to settle commercial disputes, particularly those with cross-border element. Our international arbitration group conducts arbitrations under the rules of all major institutions, as well as ad hoc arbitrations, in venues around the world.
Brus Chambers conduct every type of international and domestic arbitration but most frequently the Domestic arbitration under Indian Arbitration and Conciliation Act, 1996; ICC - International Chamber of Commerce, ICC International Court of Arbitration; LCIA - London Court of International Arbitration; SIAC - Singapore International Arbitration Centre; LMAA - London Maritime Arbitrators Association; HKIAC - Hongkong International Centre; SCC - Stockholm Chamber of Commerce; UNCITRAL - United Nations Commission on International Trade; BIMCO - The Baltic and International Maritime Council; CIETAC - China International Economic and Trade Arbitration Committee; GCC Arbitrations in the Gulf; JCAA - Japan Commercial Arbitration Association; ICDR - International Centre for Dispute Resolution; LSSA - Lloyds Standard Salvage and Arbitration; ICSID - International Centre for Settlement of Investment Disputes; Dubai Chamber of Commerce. We also handle a volume of high-value arbitrations under RSA, LSA, GAFTA, FOSFA, LMAA, London Metal Exchange, Lloyd's Open Form, ARIAS and other forums.
Brus Chambers have one of the leading dedicated domestic and international arbitration practices. The group has a top-tier reputation for proficiency in handling the increasing sophistication of domestic and international arbitration and in responding to and shaping market practice. Brus Chambers have a core team of specialist arbitration lawyers who deal with a complex, high-value and international caseload of arbitrations from a broad client base. Clients include governments, state-owned entities, financial institutions and all major corporations, involved in all industry sectors, also takes instructions from foreign law firms and professional bodies.
ARBITRAL INSTITUTIONS (Courts/ Tribunals)
International arbitration courts are institutions that were created to resolve disputes irrespective of the parties locations or systems of law. Arbitration courts administer and supervise the arbitration process, while individual disputes are decided by arbitrators. Many arbitration courts have their own arbitration rules to govern and help direct the arbitration process. The court administering the arbitration process is typically selected when the parties first enter into a contract together. This is usually included as part of an arbitration clause in the contract.
INTERNATIONAL ARBITRATION COURTS
International Court of Arbitration, International Chamber of Commerce (ICC)
The ICC administers and supervises arbitration proceedings for international disputes. Because the ICC is a business organization, its arbitration proceedings tend to involve commercial business disputes. ICC arbitration gives substantial freedom to the parties and the arbitration tribunal to decide on the procedures and rules governing the arbitration.
The International Court of Arbitration is a branch of the International Chamber of Commerce (ICC) and one of the worlds leading institutions for providing international arbitration services. The International Court of Arbitration is known for resolving international commercial and business disputes, administering more than half of all arbitration disputes worldwide.
International Chamber of Commerce
The International Chamber of Commerce is an international business organization with hundreds of thousands of member companies in over 130 countries spanning virtually every sector of private enterprise.
A key benefit offered by the ICC is its International Court of Arbitration, which allows businesses to resolve international disputes without facing the potential risks and biases of foreign courts and foreign laws.
The ICC's International Court of Arbitration
As the ICC's arbitration body, the International Court of Arbitration supervises and administers the arbitration process at all stages, while disputes are decided by arbitrators who are either selected by the parties or directly appointed by the court. ICC arbitration proceedings are conducted under the ICC Rules of Arbitration. There are no restrictions in the ICC system as to nationality of parties and arbitrators, or place, language or law of arbitration.
Where are ICC Arbitrations held?
Although it has offices in Paris, New York, Hong Kong, Singapore, Panama, and Tunisia, the ICC will administer arbitration proceedings in the location of the parties choosing, anywhere in the world. Parties will often designate the location for any future arbitration proceedings before a dispute even begins through an arbitration clause in their business contract.
How does the ICC International Court of Arbitration become involved in a dispute?
Because arbitration is a consensual process, the parties must first agree on ICC arbitration before the International Court of Arbitration will become involved in a dispute. This pre-existing agreement is usually found in an ICC arbitration clause within a business contract, but it can also be entered into by the parties after the dispute arises, if it arises in connection with a business contract.
London Court of International Arbitration (LCIA)
The LCIA provides a variety of alternative dispute resolution (ADR) services, including arbitration and mediation. The LCIA also acts as an appointing authority and arbitration administrator under the UNCITRAL arbitration rules. The LCIA is widely recognized as one of the most popular international arbitration courts in the world.
What is the London Court of International Arbitration (LCIA)?
The London Court of International Arbitration (LCIA) is one of the world's leading dispute resolution institutions providing the service of international arbitration. Formerly known as the London Court of Arbitration, the LCIA administers and provides a forum for dispute resolution proceedings for all parties, irrespective of their location or system of law.
What does the LCIA do?
The LCIA offers a variety of services related to alternative dispute resolution (ADR):
The LCIA administers all stages of the arbitration process, including:
■appointing arbitrator tribunals;
■providing arbitration rules & procedures;
■resolving challenges to arbitrators; and
■managing arbitration costs.
LCIA provides a forum for mediation proceedings, where an impartial mediator helps the parties reach a mutually acceptable resolution to the dispute. The mediator does not decide the dispute but helps the parties communicate so they can try to settle the dispute on their own. Mediation settlements are typically non-binding. The LCIA provides Mediation Rules and administers the mediation process.
Ad Hoc Arbitration
The LCIA is regularly involved in ad hoc arbitrations by assisting disputing parties with the appointment of arbitrators to hear their case. The LCIA also helps administer the UNCITRAL Arbitration Rules in ad hoc arbitrations where the parties have agreed to use those rules to govern their arbitration.
Where are LCIA Arbitrations held?
LCIA arbitration proceedings can take place anywhere around the world. The LCIA administers arbitrations regardless of the seat/legal place, or the location of any meetings or hearings.
The London Court of International Arbitration refers to the physical location of the LCIA's headquarters. However, more than 70% of the cases referred to the LCIA do not involve any parties from the U.K.
How does the LCIA become involved in a dispute?
Because arbitration is a consensual process, the parties must mutually agree to LCIA arbitration before the LCIA will become involved in any dispute.
Parties typically provide for LCIA arbitration or other forms of ADR in an arbitration clause in their contract. However, even if an LCIA arbitration clause is not initially included in the contract, the parties may later mutually agree to have the LCIA conduct their arbitration after a dispute arises.
International Centre for Settlement of Investment Disputes (ICSID)
The ICSID was established by the Washington Convention is 1965. It is widely considered to be the leading international arbitration institution devoted to resolving investment disputes, particularly investment investor-State disputes or BIT arbitrations. The ICSID itself does not arbitrate disputes, but instead provides the framework for independent arbitration panels to resolve disputes.
The International Centre for Settlement of Investment Disputes (ICSID) is considered to be the leading international arbitration institution devoted to resolving disputes between States and foreign investors, also known as BIT arbitrations.
Based in Washington, D.C. (U.S.A.) and operating under the World Bank, ICSID was established in 1965 by the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (known as the ICSID Convention or Washington Convention). Over 150 countries have signed the ICSID Convention.
The ICSID is an impartial international forum providing facilities for arbitration of international investment disputes. The ICSID does not itself arbitrate disputes but provides the rules and procedures for independent arbitration tribunals to resolve disputes.
The use of ICSID arbitration has increased rapidly over the past twenty years, as the number of bilateral investment treaties (BITs) has risen.
Where are ICSID arbitration proceedings held?
Generally, ICSID proceedings are held at the Centre's headquarters in Washington, D.C. However, parties may agree to hold their proceeding in another location where ICSID has a pre-established arrangement. These locations include:
■Permanent Court of Arbitration at The Hague;
■Regional Arbitration Centres of the Asian-African Legal Consultative Committee at Cairo, at Kuala Lumpur and at Lagos;
■Australian Commercial Disputes Centre at Sydney;
■Australian Centre for International Commercial Arbitration at Melbourne;
■Singapore International Arbitration Centre;
■Gulf Cooperation Council Commercial Arbitration Centre at Bahrain;
■German Institution of Arbitration; and
■Maxwell Chambers, Singapore.
Who can bring an arbitration to the ICSID?
A dispute must meet three conditions to qualify for arbitration through ICSID:
1.The dispute must be between a Contracting State to the ICSID Convention and a national of another Contracting State (more than 150 nations have become Contracting States).
2.The dispute must constitute a legal dispute arising directly from an investment.
3.The disputing parties must have agreed in writing to submit their dispute to ICSID arbitration or conciliation.
International Centre for Dispute Resolution (ICDR)
The ICDR is the international division of the American Arbitration Association (AAA). The ICDR provides international arbitration and dispute resolution services. The ICDR is headquartered in New York City (U.S.), and has offices in Ireland, Mexico, Singapore and Bahrain.
The ICDR is responsible for administering arbitration proceedings. As an administrative body, the ICDR processes a case from filing to closing, by:
■providing arbitration rules;
■assigning case managers;
■transmitting documents; and,
■scheduling conference calls.
The ICDR also maintains a worldwide panel of more than 650 independent arbitrators and mediators, who are assigned to hear and resolve cases.
Where are ICDR/AAA arbitrations held?
The ICDR has established cooperative agreements with arbitration institutions worldwide, enabling arbitration cases to be filed and heard nearly anywhere in the world. However, the arbitration clause in a business contract will often specify where the parties have agreed to hold the arbitration proceedings.
How do I select the ICDR/AAA to administer my arbitration?
Because arbitration is a consensual process, the parties must agree to ICDR arbitration before the ICDR will become involved in a dispute. Parties will often agree to ICDR arbitration in an arbitration clause in their contract before a conflict even begins.
If there is an existing dispute with no arbitration clause, or an arbitration clause that does not provide for arbitration under the ICDR/AAA rules, the parties may file a submission agreement to the ICDR/AAA for administration of the arbitration, provided both parties agree to use ICDR.
OTHER ARBITRAL INSTITUTIONS
There are many other International arbitration courts/ institutions in almost all countries that are created to resolve disputes irrespective of the parties locations or systems of law. Arbitration courts administer and supervise the arbitration process, while individual disputes are decided by arbitrators. Arbitration courts have their own arbitration rules to govern and help direct the arbitration process. The court administering the arbitration process is typically selected when the parties first enter into a contract together. This is usually included as part of an arbitration clause in the contract.
Brus Chambers assist client in arbitration at most of the arbitral tribunals.
FAQS ON INTERNATIONAL ARBITRATION
What is arbitration?
Arbitration is an alternative to traditional litigation. Instead of a judge or panel of judges, one or more independent neutral third parties are appointed as an Arbitral Tribunal to resolve the parties disputes. By choosing arbitration, the parties designate an Arbitral Tribunal in place of the courts.
How does arbitration differ from court litigation?
The proceedings are less formal and usually do not follow the stricter procedures and evidencing rules applied in court litigation. Arbitration are conducted in private conference rooms agreed between the parties and the arbitrator while court litigation are held in court room or in judges chamber. The award is binding and is enforceable by the civil courts.
Why does (international) business prefer arbitration over court litigation?
Arbitration is often quicker than the courts, particularly when no possibility for appeals (as is usually the case). This can also result in lower costs.
The proceedings are not public. The existence of the arbitration, the parties submissions, and the hearings can thus all remain confidential.
For highly technical or industry-specific disputes, the parties can agree to and appoint arbitrators with the desired background, experience and (technical) expertise for their industry or international context.
Arbitration allows parties to present and argue their dispute in a (neutral) language (such as English) rather than having to translate documents and use interpreters before the national courts of one of the parties. (International arbitrators are sometimes perceived to have greater impartiality than national judges in some points of the world.)
Most importantly when there is no treaty between the countries of two parties in dispute, the United Nations Convention on Recognized Enforcement of Arbitral Awards offers a mechanism between the more than 120 signatory countries worldwide to readily recognize and enforce arbitral awards from each others countries. This is a major advantage over court litigation in such circumstances.
How does one agree to arbitration?
The parties to a contract can place an arbitration clause in their agreement which will come into effect in the event a dispute later arises. However, even if there is no contractual clause, once a dispute arise between 2 or more parties, they can agree to have it resolved by arbitration through a simple submission agreement. Under either approach, the agreement to arbitrate must generally be in writing and signed.
If parties have agreed to arbitrate, can a party still bring dispute before a civil court?
By agreeing to arbitrate, a party consent to replacing the ordinary court's jurisdiction with the private forum of arbitration. The court's should recognize this and not accept jurisdiction over the dispute if the other party involves the existence of the agreement to arbitrate. The courts at the place of arbitration do supervisory jurisdiction to handle matters (other than resolving the merits of the dispute), such as enforcing the agreement to arbitrate, appoint (an) arbitrator(s) if needed, deciding challenges to arbitrators, supporting the Arbitral Tribunal with the court's compulsory powers (e.q. ordering the appearance of recalcitrant witnesses), and enforcing the Arbitral Tribunal's award.
Once an award has been rendered, what are the possibilities for enforcement and execution in India?
Code of Civil Procedure provides for procedure to enforce and execute final arbitral awards in India. Indian courts conduct a review of the face (but not the contents of the decision) in the award. Grounds for refusing enforcement or setting aside an award are quite limited.
What are the possibilities for enforcement and execution outside India?
The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and other treaties allow for the recognition and enforcement of arbitral awards from India in over 120 countries in all parts of the world, including most industrialized nations. The New York Convention requires national courts to recognize and enforce commercial arbitral awards rendered in other countries that have been signed to this treaty. There are limited grounds for refusing the enforcement of an arbitral award. As a result, the enforceability of an arbitral award is in most cases much wider and easier than that of a judgment rendered by a national court. Especially when dealing with parties outside the European Union, an arbitration clause is preferable in terms of enforceability.
What is the difference between institutional arbitration and ad hoc arbitration?
Ad hoc arbitration: Administrative Ad hoc arbitration is arbitration that is not administered by others and requires the parties to make their own arrangements for selection of arbitrator(s), and the arbitrator(s) to defernance the applicable procedures and make administrative arrangements. Provided that parties are prepared to cooperate after the dispute arises, ad hoc proceedings can be more flexible, somewhat more economical and faster than an administered proceeding. However, failure of one or both of the parties to cooperate in facilitating the arbitration can result in an undue expenditure of time in resolving administrative issues. The UNICITRAL arbitration rules have been developed by the United Nations specifically for ad hoc arbitrations and provide a good framework for such non-administered cases.
Institutional arbitration: Institutional arbitration is arbitration that is administered by an arbitration service provider of international arbitrations. Internationally, the International Chamber of Commerce in Paris (ICC) Court of Arbitration enjoys wide recognitions throughout the world and is often chosen for the administration of international arbitrations, although numerous other institutes provide comparable services (such as the London Court of Independent Arbitration, and the Stockholm Chamber of Commerce). Both the ICC and the NAI offer standard rules and procedures, administrative assistance, pools of qualified arbitrators, selected by field of (technical and/ or legal) expertise, appointment of arbitrators and facilities to hold and conduct the proceedings. For these services, an administration fee will apply, which varies, depending among other on the amount in dispute.
Arbitration practice and customs vary from jurisdiction to jurisdiction. The contents of this FAQ is intended to provide general information on the subject matter. Specialist advice from a properly qualified advisor should be sought before relying on any of the foregoing information.
For a more detailed summary of domestic and international arbitration, kindly contact Brus Chambers.