Commercial Arbitration

-Apoorvi Shrivastava

Course description: The course deals in an exhaustive manner with the substantive and
procedural aspects of the law related to international commercial arbitration. The course will
examine and discuss various issues which occur in international arbitral process, ranging from
entering into the arbitration agreement to the enforcement of the award. It will focus on
theoretical foundations of international arbitration, the juridical nature of arbitration, the
agreement to arbitrate, applicable laws, the interplay between national courts and international
arbitral tribunals and finally the various issues related with the award. We shall refer to various
national arbitration statutes, international arbitration treaties and the arbitral rules of leading
international arbitral institutes.
Object: The object of the course is to enable students to develop legal strategy to solve
disputes in the field of international commerce, through the method of arbitration.
Course Detail:
Module I
Concept and ethos of arbitration
Dispute settlement mechanisms
Arbitration as a dispute settlement mechanism
What is arbitration (theoretical definitions)
Arbitration defined in various laws
Why to arbitrate?
History and growth of international commercial arbitration
Forms of arbitration- their advantages and disadvantages
International Commercial Arbitration defined
The meaning of international
The meaning of commercial
Arbitration in equity and amiable compositeur
Distinguishing International arbitration from arbitration
Article- Jan Paulson, International Arbitration is not Arbitration, Stockholm
International Arbitration Review 2008
Overview of the legal regime governing international commercial arbitration

Module II
Theoretical foundations of International Commercial Arbitration:
Two Theoretical Models:
National order approach
The denationalized autonomous approach

Is international commercial arbitration part of the national sovereign legal order? Or

entirely separate from the national legal order: a denationalized creature of contract?
Readings

Redfern and Hunter, 2009 pp-68-73 and 188-193

Poudret and Besson, Comparative Law of International Arbitration, 2007, pp 83
-104
Emmanuel Giallard, Legal theory of International Arbitration, Martin Nijhoff, 2010,
pp 1- 53
Lex Facit Arbitrum, F. A. Mann, Arbitration International, Vol. 2 No. 3 (1986)
The status of Vacated Awards in France: the court de cassation Decision in
Putrabali, Arbitration International, Vol. 24 No.2 (2008) A soft copy will be
supplied
Arbitration Unbound: Award detached from the country of its origin, Jan Paulson,
International and Comparative Law quarterly (1981) pp 358

Module III
The Agreement to Arbitrate
Categories of arbitration agreement
Significance of an arbitration agreement- positive and negative effect
Parties to an arbitration agreement
Formal Validity- The requirement of writing and the debate surrounding it
Key Characteristics: The doctrine of Separability/Autonomy UNCITRAL Model Law
Art. 16
Reading- Fiona Trust & Holding & Holding Corporation v Yuri Privalov & others
(2007) UKHL 40
Issues of Substance: The concept of Arbitrability
Parties v Non-parties extension of the arbitration agreement to non-signatories
Confidentiality

Module IV
Applicable Law
Capacity- Article V (I) (a) New York convention
The Law Governing the Agreement to Arbitrate
C v D (2007) EWCH 1541
The law applicable to the substance
The law governing the Arbitration
Union of India v McDonnell Douglas (1993) 2 Lloyds Rep. 48
The concept and relevance of seat
Delocalised Arbitration
Conflict Rules and the search for the applicable law
Recognition and enforcement

Module V
Arbitral Tribunals
Appointment of Arbitrators
Different types of tribunals
Composition of Arbitral Tribunals
Challenge and replacement of Arbitrators Independence v Impartiality v Neutrality v
Actual v Apparent bias, Duties of Disclosure
Loss of right to appoint/ Truncated tribunals
Status of Arbitral Tribunals- judges or creatures of contract
Jurisdiction of Arbitration Tribunal: Competence of arbitral tribunal to rule on its
jurisdiction

Module VI
Conduct of Arbitral Proceedings

Preliminary Steps
Written submission
Evidence gathering
Hearings & proceedings after the hearing
How an arbitral tribunal reaches its decision- Deliberation, Majority Voting, The
Bargaining Process, Tribunal Psychology, Separate, Concurring and Dissenting
opinions

Module VII
The Role of National Courts During the Proceedings
At the beginning of the arbitration
During the arbitral proceedings
At the end of the arbitration

Module VIII
The Award

Categories of Awards
Remedies
Validity of Awards
The effect of Awards- Res Judicata
Clarification and review of the Award
Recourse against Arbitral Awards
Recognition and enforcement of arbitral Awards

Prescribed books:
Nigel Blackaby and Constantine Partasides with Alan Redfern and Martin Hunter, Redfern and
Hunter on International Arbitration, 5th ed. Oxford
Gary Born, International Arbitration; Law and Practice 2012
Reference books:
Gary Born, International Commercial Arbitration, 2009 CCH
Jean-Franois Poudret, Sbastien Besson Comparative Law of International Arbitration, 2007
Fouchard, Gaillard, Goldman on International Commercial Arbitration, Gaillard and Savage ed.
Emmanuel Giallard, Legal Theory of International Arbitration, Martinus Nijhoff, 2010
Julian D.M. Lew et al. Comparative International Commercial Arbitration, Kluwer Law
International.