The ICC and International Arbitration

Abstract

The international commercial disputes are bound to take place giving rise to need for arbitration. The arbitration can either be carried out by an international arbitration or rulemaking institution or by an ad hoc arbitrator. In many instances, the parties to the international arbitration are required or deemed to have waived their right to legally challenge the arbitral award granted by the appointed arbitrator. However, when the arbitrators exceeds powers conferred upon them by the substantive law together with the parties contractual agreement, the aggrieved party or parties can seek legal redress of the matter, which can have the net effect of setting aside the arbitral award, or discontinuing the arbitral proceedings. The arbitral tribunal usually has limited power, but the current international legal framework does not set a clear remedy for ensuring that the arbitrator do not use the limited power granted upon them by the applicable law and parties agreement to give a careless award. In light of this legal loophole, this study analyses the US punitive damages with a view of proposing them as possible tool for providing remedy to this problem. The study looks at the legal framework of the international arbitration, more particularly under the ICC, the impact of wrong arbitral award, legal challenge to the arbitral award and offers recommendations on proper mechanisms that need to be instituted in order to preserve the confidence of the international community on the international arbitral institutions and ad hoc arbitrators.


 

Table of Contents

Abstract 2

1.0 INTRODUCTION.. 4

1.1Background Information. 4

1.2 Conceptual Framework. 7

1.2.1 The International Contractual Dispute Case Evaluation. 7

1.2.2 The Power and jurisdiction of Arbitrator in an international Arbitration Agreement 9

1.2.3 The Arbitration and the National Courts. 12

1.2.4 ICC and International Arbitration. 13

1.3 Thesis Statement 14

1.4 Problem Statement 15

1.6 Objectives. 16

2.0 LITERATURE REVIEW.. 16

2.1 Punitive Damages. 17

2.2 Punitive Damages in US. 19

2.3 International Arbitration Law in UK. 21

2.4 Grounds for Challenging Wrong Arbitration Awards. 22

2.5 Previous Appeals on International Arbitration Judgments and Actions. 24

3.0 METHODOLOGY. 26

4.0 FINDINGS. 27

5.0 DISCUSSION OF FINDINGS. 27

5.1 Powers of Arbitrator in International Arbitration Agreement 27

5.2 Punitive Damages in UK International Arbitration Law.. 29

5.3 Grounds for Challenging Wrong Awards. 31

5.4 Impact of Wrongful Awards by the International Arbitrator 33

6.0 CONCLUSION.. 34

6.1 Recommendations. 35

Bibliography. 36

 

 

 

1.0 INTRODUCTION

1.1Background Information

International commercial agreements often give rise to the commercial and relational disputes. In many instances, parties to the international agreements hail from different cultural and legal backgrounds. This necessitates creation of international arbitration in the binding contract, which helps to resolve their disputes without indulging the formalities of the parties’ respective legal systems[1]. The parties privy to the international agreements makes a decision to submit any disputes that might arise to binding resolution by either one or more arbitrators, who are selected on behalf or by the parties and applying the adjudicatory procedures mainly through inclusion of the provision for the future disputes arbitration in their contract.

Owing to the growth in international cooperation and global integration, the international contractual agreements have increased along with the need for arbitration. Arbitration has become one of the attractive dispute resolution mechanisms because of its salient features. The international arbitration bears characteristics that include having a final and binding award that is not subject to the regular courts appeal except for the recognized procedure and it is controlled by both parties[2]. The international arbitral tribunal has unique characteristics as compared to other courts that include being private, flexible and confidential and transcends the national courts boundaries.

The disputes resolutions, which fall within the international commercial contracts, are mainly carried out under the auspices of different rulemaking bodies and institutions[3]. Some of these internationally recognised institutions include the JAMS International, International Centre for Dispute Resolution (ICDR), the London Court of International Arbitration (LCIA), International Chamber of Commerce (ICC), Singapore International Arbitration Centre (SIAC), and International Centre for Dispute Resolution (ICDR). On addition to this, there are specialist ADR bodies that have mediation and arbitration panel and  centres such as the World Intellectual Property Organisation (WIPO). Some of these arbitral institutions have adopted the rules of the UNCITRAL, which they use in the arbitration of the international cases. As such, international institutions like the ICC plays instrumental role in constituting tribunals that arbitrate various international business or relational disputes[4].

The parties to the international commercial agreements are at liberty to choose their arbitrator and include this provision in their contract. Parties to the disputed international contracts often opt for the institutions like the ICC as the arbitrator due to its ability to resolve the dispute in a more neutral forum and the ability to make more enforceable binding decisions. The UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 serves as the principal instrument that governs the awards and enforcement of the international commercial agreements’ arbitrations. This convention is ratified by more than 140 countries and was drafted under the UN auspices. The convention obligates the states, which have ratified it, to enforce and recognize the foreign arbitral awards and the international arbitration agreements that are issued in the other contracting states, subject to some exceptions[5].

Some developed countries like the UK have consciously elected not to adopt or follow the model law on the international commercial arbitrations drafted under the UNCITRAL[6]. In the United Kingdom, the Arbitration Act 1996 regulates the proceedings of the arbitrations that are within the country’s jurisdiction. Section 69 of the Arbitration Act 1996 allows either party to the dispute resolution to appeal to a court on a point of law if the parties to the disputed agreement have agreed for this cause of action to happen. Either party to the arbitration can also appeal on the basis arbitrators’ powers, that is, if the arbitrator exceeds or goes beyond the allotted power.

This act together with other legislations and international laws arbitration framework create ground against which the arbitral awards can be challenged in the court of law. However, the ways of protecting against the careless arbitrators awards are very limited in the international arbitral laws framework. This necessitates the establishment of ways in which the careless arbitration awards can be prevented and their awarders punished. The punishment of wrongful and careless arbitration awards would create confidence of the international community on the ability of the arbitration tribunals constituted under the auspice of ICC and other international arbitration bodies to issue a fair decision and awards.

For this reason, this research seeks to assess the impact of giving a wrong arbitral award. As a foundation to the development of the research’s epistemological philosophy the International Arbitration in United Kingdom that related to the arbitrator’s decision in Lesotho Highlands Developments Authority v Impregilo [2005] UKHL 45 will be evaluated. This case will reveal the ground against which the arbitrator awards can be challenged[7]. More precisely, the research will focus on the limited power of arbitrator in an arbitration agreement and find the way to protect or punish the careless arbitrator’s awards. The research will also looked on different tools for solving the limited power of arbitrator in an arbitration agreement and find the way to protect or punish the careless arbitrator’s awards.

The research commences by evaluating the decisions of the court of appeal and House of Lords in Lesotho Highlands Developments Authority v Impregilo.The decision of the House of Lords is imperative in understanding the current position on the arbitrators’ powers. The research then looks at the wider conceptual framework within which the international arbitration is carried out. The thesis of the research is then presented before elucidating the problem statements and the research objectives. The evaluation of the literature will shed light on the issues surrounding the international arbitration, arbitral awards, powers arbitrator, and review the use of punitive damages in various jurisdiction blocks like UK, USA, and AU. The research ends with the discussion on the all the findings, the summary of the main ideas and the recommendations that should be adopted by various jurisdictions, international arbitration institutions and international arbitral rules making bodies.

1.2 Conceptual Framework

This section looks at the concept of international arbitration, challenges to the international arbitral awards, and the ICC arbitral rules. The segment commences by looking at the challenge of the error in the arbitral award that was presented to the House of Lords and Court of appeal in the Lesotho Highlands Developments Authority v Impregilo.

1.2.1 The International Contractual Dispute Case Evaluation

In Lesotho Highlands Developments Authority v Impregilo[2005] UKHL45,the House of Lords were to consider whether the ICC arbitrator had acted and made a decision in excess of the powers vested upon them under the section 68 of the United Kingdom Arbitration Act 1996[8]. The case ended up examining whether the ICC arbitral tribunal awards can be challenged in the court of law. The Highland Water Venture (HWV) was a consortium of international contractors who built the Katse Dam in Lesotho who were contracted by the Lesotho Highlands Developments Authority under the funding of the UN[9]. The contract to build the dam incorporated the ICC rules and was an amended version of the FIDIC 4th edition[10]. This means that the ICC was to be the arbitrator in case the dispute arose. During the dam construction, the contractors demanded extra payment arising from extra labour cost and some other expenses[11].

The ICC constituted a three experienced lawyers tribunal, which held the arbitration in London and awarded the HWV three out of the seven claims. The award by the tribunal was challenged by the clients based on the UK’s Arbitration Act where they cited that the arbitrators exceeded substantive jurisdiction. They claimed that the arbitrator did not apply the contractual provisions in the awards. The commercial court found the clients on point and ruled that the tribunal had exceeded power under the UK Arbitration Act1996 section 68 by giving contract in different currency other than the one provided in the contract[12]. Similarly, the court of appeal judges upheld the commercial court ruling and found the arbitrators to have departed from the parties’ agreement provisions. The court of appeal held that the tribunal exceeded its power when it thought that it had power under the section 48(4)

of the UK Arbitration Act 1996 to depart from the prior agreement between the parties.

Under the section discretionary Section 49(3) of the Act, the arbitral tribunal is given discretionary power of resolving the dispute through the application of the substantive law

of the agreed contract and by failing to do so the tribunal exceeded its power. The to the House of Lords by the clients focused on the fact that the arbitration was carried out under the international laws as opposed to the UK law. Under the arbitral law article 28, the parties to the ICC arbitration are obligated towaive their right in any form to taking a legal challenge to the award by the tribunal as much as it is permissible by the tribunal laws of state in question[13]. This makes section 69 of the English Arbitration Act 1996, which allows the parties to appeal the award on a question of law, to be a subject of reservation. As such, the ICC rule under the English Arbitration Act 1996 has a net effect of excluding legal challenge of the award on the question of law that can rise out of the ward[14].

The House of Lords held that the tribunal exercised the erroneous power that was vested upon it and not the excess of jurisdiction. The powers of the tribunal were held to be found on the are arbitration agreement which is read with the curial law as opposed to the underlying contract. The curial law in this case was the English Arbitration Act 1996. Under the international arbitration laws the parties are allowed to nominate the substantive law (the law that will govern the contract) and the curial law (that will govern the arbitration proceedings) following the principle of the contractual parties autonomy. This means that the English Arbitration Act 1996, being the curial law in this contract determines the power that the ICC tribunal had on arbitrating the Lesotho Highlands Developments Authority and the consortium of the contractors. The House of Lords upheld the tribunal awards to the Highland Water Venture contractors.

1.2.2 The Power and jurisdiction of Arbitrator in an international Arbitration Agreement

Upon the selection and appointment of an international arbitrator by the international contractual parties the power to administer the arbitration proceeding is usually deemed to have been conferred on the appointed arbitrator having obtained the power from the consent of the parties as illustrated in the agreement of arbitration. Other than the arbitration agreement being the source of the arbitrator’s power, the power of the arbitrator is also derived as may be conferred in the applicable laws. As the arbitration proceeding progress the power gradually devolves from the parties to the arbitrator. However, the arbitrator is supposed to stick within the power vested upon them by the applicable law and the parties arbitration agreement when conducting the arbitration proceedings.

The parties to the arbitration proceedings can confer express powers to the arbitral tribunal. They can also confer an indirect power on the tribunal by providing the set arbitral rules this is especially the case in the adhoc arbitration and the automatic rules, which follow under the institutional proceedings. For instance, the UNCITRAL model rules in the adhoc arbitral proceedings vests wide discretionary power upon the arbitral tribunal or other arbitrators to carry out the arbitration proceedings as they consider being appropriate provided they adhere to the principles of fairness[15].

On addition to the express conferment of the powers by the parties to the tribunal, the tribunal can obtain its power from the operation of the curial law. For example the  English Arbitration Act, 1996 confers the power to the arbitrator to carry out various duties like administering the oath to the witness. The Act also, as evidenced in the case of the Lesotho Highlands Developments Authority v Impregilo[2005] UKHL45 above gives the tribunal the power to discretional power to give fair awards on merit. The UNCITRAL model laws Article 19 gives the tribunal the power to determine the relevance, admissibility, weight, and materiality of any evidence and Article 17 gives the tribunal power to order any party, at the party’s request, to take an interim protection measure in respect of the subject matter.

An arbitral tribunal must operate within the jurisdiction and the power that is conferred upon it by the involved parties. This means that the tribunal or the arbitrator must remain within the stipulated terms of reference without exceeding it. parties to the arbitration process, particularly under the auspice of ICC  agree on their term of reference which stipulate the addresses and names of the parties as well as their representatives, the summary of the claims, the location or place in which the arbitration will take place and the list of all the issues to be determined if applicable. Failure by the parties or the arbitrator to abide by the terms of reference agreed upon can render the final award not to be enforced or recognized or liable to be set aside.

In case of objection of the arbitral tribunal’s jurisdiction, it is widely recognized that it will have the jurisdiction of determining its own jurisdiction. The ICC Arbitration rules, UNCITRAL Model Law, the English Arbitration Act, and other arbitral laws have clauses that confer upon the arbitrators’ power to rule on their own jurisdiction.The ICC rules provides for a tow stages approaches toward determining a jurisdiction. The first approach is for the ICC arbitration court to prima facie satisfy itself that the arbitration agreement exist and then refer the matter to the arbitrator that would determine its jurisdiction issue. A party can object to the arbitral tribunal jurisdiction based on such claims as lack of authority by the person who signed the agreement, non-arbitrable dispute, and arbitration agreement becoming void.

The power of the arbitrator or the arbitral tribunal to rule on its jurisdiction was recognized in Saudi Arabia v. Arabian American Oil Co. Ltd (ARAMCO) where the government of Saudi Arabia inter alia challenged the jurisdictional competence of the adhoc tribunal based on the ground that the government could withdraw any act done by the tribunal in the account of its sovereign power[16]. The tribunal held that it has the required competence to rule and determine o its jurisdiction. This was also re-affirmed in the Texaco Overseas Petroleum Co./CaliforniaAsiatic Oil Co. v. Government of Libya where the arbitrator appointed by the ICJ had to determine its own jurisdictional competence when the government of Libya failed to take part in the arbitration proceedings[17]. The arbitrator held that it possessed jurisdiction to rule on its own jurisdiction on the basis of the customary rule of the international law.

1.2.3 The Arbitration and the National Courts

When the parties to a disputed international or local contract choose the arbitration as their means of resolving the dispute, they exclude in a way the national courts from acting as their arbiter. This means that when the parties seize of a matter to the tribunal, the court is effectively relegated to the back stage. However, the intervention of the courts is often required to decide on the proceedings difficulties. As a result often the courts are enjoined in their role to consider the term of reference, party autonomy, and the governing applicable law. The courts assistance can be called for in constituting the tribunal from where the power of the court is devolved to the tribunal and its handed back to the court to decide on the fairness of the tribunal decision upon the end of the arbitration where the court can also be called upon to enforce the arbitral award.

The national courts can assist through making the injunctive orders for protecting the jurisdiction of the arbitral tribunal or to impede the conduct of the arbitration proceedings. The parties can request the court to restrain the conduct of the arbitral proceedings. Under such application, the courts usually issue an injunction only when it is clear that the proceeding of the arbitration would not have been instituted. The UNCITRAL Model Law, enjoins the national courts in dealing with the matter which are subject of arbitration, by referring the parties to the arbitration unless in the situation where the agreement is found to be incapable of performance, inoperative or null and void. However, is some cases the courts issues injunctions against the continuance or commencement of the arbitration proceedings. For example, in Himpurna California Energy Ltd. v. Republic of Indonesia the Jakarta based courts issued injunctions against the proceedings of the arbitral tribunal[18].

The question of the court interference with the arbitral proceedings varies across the jurisdictions. In France, for example, the laws require the courts to decline the jurisdiction in the matters that are adjudged to be the subject of the arbitration unless the agreement of arbitration is manifestly void[19]. In Switzerland, it has been held that the national courts should decline the jurisdiction, particularly to the cases, whichlexarbitriis the Switzerland, unless the arbitral agreement ineffectiveness is manifest patently[20]. In England, the courts attitudes are in support of the arbitration conducts proceedings, while at the same time retaining the power for general supervising and intervening in the deserving cases. In USA, the court adopts a more liberal approach where they are willing to entertain the application either at the beginning or during the arbitration proceedings.

1.2.4 ICC and International Arbitration

The ICC international court of arbitration has assisted in resolving more than 17000 international dispute cases from parties hailing from about 180 countries[21]. The procedure and process used by the ICC is shaped by its members. The current new rules of the ICC come into force in the year 2012. The main duties of the ICC are dispute resolution, rule setting, and policy advocacy. The standards and rules of the ICC are prepared by the specialized bodies. The ICC rules of mediation and rules arbitration are contained in the publication number 865. This publication is available upon the court request. The ICC arbitration is usually a private procedure but it lead to enforceable and binding decisions.

In resolving the commercial disputes, the ICC sets various tribunals that report on their decision and proceedings to special constituted committee of the ICC. The ICC arbitration system offers full supervision as well as a range of essential services like the scrutiny of the draft arbitration awards. Unless the relevant parties have agreed it is not possible to use the ICC as an arbitrator in a commercial dispute. During the arbitration proceedings under the ICC, the parties are at liberty to choose the language of the proceedings, and the applicable law. In absence of the law and language agreed between the parties, the arbitral tribunal is vested with the mandate of determine rules and language that it considers to be appropriate. The arbitration parties under the ICC are also at liberty to choose the applicable procedures, subject to some mandatory provisions which may be applicable and

The ICC offers the institutional arbitration as opposed to the ad hoc arbitration. Ad hoc arbitration is usually the arbitration that involves no institution with the parties and the arbitrator administering of the proceedings themselves. In 2008, Queen Mary University Law School carried out a research the popularity of both ad hoc and institutional arbitrations. The research revealed that between the year 1998 and 2008, 86% of all the rendered awards were under the arbitration institution rules while 14% were under the ad hoc arbitration. The research cemented the anecdotal evidence that the institution form of arbitration is more popular and preferred compared to the ad hoc form of arbitration. On the ICC, the research revealed that 50% of the corporations that participated in the research preferred the ICC arbitration. This shows that ICC has become a central institution to the global commercial arbitration.

1.3 Thesis Statement

Given the ruling in the Lesotho Highlands Developments Authority v Impregilo [2005] UKHL 45 by the court of appeal and the House of Lords, there are grounds for challenging arbitrator awards in which case the punitive damages that are generally used for protection the damages in US, serve as amicable tools to solve the problem of protecting or punishing the careless arbitrator’s awards.

1.4 Problem Statement

The Court of Appeal, Commercial court, and House of lords agreed that the arbitrators in the case of Lesotho Highlands Developments Authority v Impregilo [2005] had made errors by failing to comply with the contractual provisions that detailed the currency in which the parties should make payments. The case identified the grounds for challenging the arbitration awards. Different jurisdictions allow different exclusions from the legal challenge of the arbitral award. The ICC rule, which is cross jurisdictional excludes the legal challenge of the arbitral award to the extent that it is permissibleby the arbitration law of the country in question. However, the arbitration can be challenged when the arbitrators are considered to have exceeded their powers or through such acts departing from the agreement of the parties.

Article 34 of the UNCITRAL model laws on arbitration of the international commercial disputes stipulates the recourse for applying for setting aside of the arbitral award[22]. The application of setting aside the award requires the aggrieved party to furnish the proof of that the party to the arbitration had incapacity, the constitution of the tribunal was not in accordance to the parties agreement, and the party to the tribunal was not furnished with proper notice. The power of the arbitrator is to offer awards is expressed in the contractual agreement of the parties as well as the substantive and curial law. The applicable law and the parties’ agreement can give the arbitrator limited power[23]. This can affect the entire arbitration proceedings and final issue of award. In spite of the, the international arbitral laws offer few remedies to careless award in arbitration.

The availability of the limited power of arbitrator in an arbitration agreement and lack of properly instituted ways of protecting or punishing the careless arbitrator’s awards leaves a legal and knowledge gap in the international arbitration law. This creates a need for identification and establishment of the tools that can be used to solve this challenge. For this reason this research seeks to answer the question, how can punitive damage that are generally used for protecting the damages in US be used in international arbitration in UK?

1.6 Objectives

The aims of this research are to:

  1. Evaluate the powers of the international arbitrator and legal framework within which the international arbitration takes place.
  2. Evaluate ways in which the punitive damages that are generally used for protecting the damages in US be used in international arbitration in UK
  3. Assess the grounds for challenging wrong awards and compare the same with the arbitration wrong award in US and AU
  4. Evaluating the impact of wrongful awards by the international arbitrator
  5. Provide recommendations on proper tools that can be used to prevent and punish careless arbitral awards

2.0 LITERATURE REVIEW

Arbitration gives parties involved in a dispute an opportunity to have their differences resolved outside the court by experienced mediators. Courts are not to get in the way of the arbitration process unless the process and the consequent arbitration award contravene various stipulated instances. One instance under which the court may vacate the award given by an arbitrator is where such award infringes public policy. Courts tend to interpret this violation in two ways; first courts may vacate any arbitral award given by an arbitrator where such an award tends to favor parties whose wrong doing had contravened the public policy. Courts may also vacate awards that favor parties while disregarding public policy. Courts demand the arbitration process to be exercised in with utmost care and concern for the involved parties and the issue at hand[24]. Powers of an arbitrator are limited by the courts where they are not supposed to exceed their authority stipulated in the arbitration act of respective jurisdiction. Aggrieved parties are encouraged to challenge the irregular arbitral awards in the high court. Punitive damages are observed as the most efficient way to compensate for careless arbitrator’s awards and are used extensively in US[25].

2.1 Punitive Damages

The idea of punitive damages emerges as one of the most notable difference between common and civil law. In countries which observe extensive adherence to civil law, the concept and application of punitive damages is scarce whether the defendant in involved breach of contractual agreement or otherwise. There is however a limitation with some civil law countries where there has been deliberate intention to hurt the claimant leading to fraud. Among the countries observing the common law, the United States is the only country which allows for punitive damages to be awarded in cases involving breach contract. Application of civil damages to punish and discourage is ordinary in the US legal system. Punitive or the exemplary damages system operates as a public service option in US and is administered in the civil juries of America on daily basis. The difference in conceptualization of punitive damages between civil and common law is likely to lead to disharmony in the international platform during enforcement. Even the US, it is still questionable whether arbitrators have the authority to award exemplary damages[26].

In common law, exemplary damages are used with a motive of compensation, deterrence as well as punishing the defendant. This was expressed in Wilkes v. Wood[27] where damages are used not only for the compensation for the aggrieved party but as punishment to the guilty person and to deter such a person and the accomplices from engaging in such an act again. Although the concept of exemplary damages in common law was first developed in England, application of the law in UK is limited contrast to its wide application in US. Certainly, punishment and deterrence have been found to be the major reasons for exercising punitive damages and this approach have attracted mass criticism from both legal and contemporary organizations. Consequently, the idea of exemplary damages emerges as a major concern in implementation of arbitration awards especially when granting such awards in foreign countries which may have different view on punitive damages[28].

Punitive damages are also used for compensation purposes. Based on the English law and selective laws in some countries observing civil laws, the existing party in litigation is mandated to recover the legal fees upon prosecuting the case. This however is not the case in the US. Compensation of the legal representative is regarded as a punishment to the other party. Unlike the punishment function, function of compensation found in exemplary damages is likely to cause some inconsistencies with international arbitration. Although compensation of the aggrieved party with the recommended fees by the arbitrator and incursion of some additional costs by the guilty person is a generally accepted practice, it may lead to serious disputes in international arbitration due currency value difference as observed in Lesotho Highlands Developments Authority v Impregilo [2005]. Some jurisdictions however view incursion of legal fees as a form of punishment to the guilty party where such a person or group of persons absorb all the costs of the arbitration process if found guilty. This approach might work with international arbitration since most countries do not view payment of legal fees as punitive[29].

2.2 Punitive Damages in US

            Exemplary damages have been extensively used in the court jurisdiction of maritime and several other cases in the US where a person is found to be culpable of malicious conduct. The study further established that arbitrators were cautious on passing similar verdicts. In reference to the New York State law as indicated in the New York City court of appeals in case of Garrity v. Lyle Stuart, Inc. (1976)[30], the compulsion of punitive damages is a endorsement which only the state can impose. In this case, the court vacated a portion arbitration award which involved punitive damages. Even though the consequent Garrity rule has not been followed and almost abandoned, it serves as a major indicator that awarding exemplary damages in arbitration may lead to serious problems even in the US. The question of whether an arbitrator has power to award exemplary damages to a party largely depends on the laws of the place which the process is taking place (lex arbitri) as well as the conditions of the arbitration[31].

Party autonomy is much observed in the international arbitration process. This principle would apply where the parties through their agreements explicitly empowered the arbitral tribunal to give punitive damages. Several jurisdictions in the US abiding to various laws of the state have allowed for arbitrators to award punitive damages where the agreement between the involved parties provides so. Some state in the US such as New York limits the arbitrators from awarding exemplary damages even where the agreement between the parties so stipulate. This was observed in Ex parte Costa and Head (Atrium) Ltd. (1986) and Regina Construction Corp. v. Envirmech Contracting Corp., (1989)[32]. This position was based in the rationale observed in the case of Garrity. Federal courts however, hold a different view. A federal district court ruled that exemplary damages were arbitrable in Willis v. Shearson/ American Express Inc. based on the expansive arbitration clause and there existed no reason of public policy that would prohibit such an award given that the parties had agreed to it. Similarly, the Court of Appeals for the Eleventh Circuit in the US sustained a ruling of punitive damages by an arbitrator for deliberated fraud in Willoughby Roofing & Supply Co. v. Kajimia International[33].

The Supreme Court of US has expressly ruled that parties to arbitration are free to form their arbitration agreement as they think fit. Party autonomy is thus upheld by the Supreme Court of US. This approach to international arbitration was however observed in Mastrobuono v. Shearson Lehman Hutton, Inc[34]. The dilemma in this case was whether a case whose parties are from jurisdictions observing different set of laws, where one supports punitive damages while the later is against it. In the case, one party was from New York and case was argued in the New York set of law. The arbitrator awarded punitive damages as per the parties’ agreement in breach which contravened the states Garrity rule. The Supreme Court however held that the arbitration tribunal had the authority to award punitive damages despite the Garrity rule of the state. The court further indicated that with absence of any contractual provisions, the Federal Arbitration Act (FAA) supersedes any law of the state which forbids arbitrators from giving exemplary damages[35].

In US, arbitrators may award punitive damages if they deem fit to do so based on the prevailing circumstances of the case. The only instance where an arbitrator cannot award an exemplary damage to a party in arbitration is only whether the disputing parties have expressly precluded such damages in their agreement. It is however necessary for parties to clearly indicate their stand in an arbitration. Where parties have adopted a broad arbitration agreement with implied approach to punitive damages, the arbitral tribunal may unquestionably impose such damages. Additionally, the federal law of US requires parties to arbitration to expressly state under which law and jurisdiction they would like to operate in to avoid contradictions. The FAA however pre-empts any state from prohibiting arbitral awards of exemplary damages where the parties have agreed to it[36].

2.3 International Arbitration Law in UK

            The international arbitration is expressly indicated in the English Arbitration Act 1996. This law does not allow for award of exemplary damages by arbitrators. The arbitration law allows for a fair resolution of differences between parties by an independent and unbiased tribunal without incursion of unnecessary expenses. The UK international arbitration law allows the parties to agree freely on how to best resolve their disputes subject to the safeguards that are in the light of public interest. The court is not allowed to intervene with the ruling unless it contravenes fundamental issues such as the ones highlighted thereof. Parties are prohibited by the law to enter into arbitration agreements which are inconsistent with the provisions of the law. However, the parties are allowed to make their own arrangements on how they wish to the process to be coordinated by the arbitral tribunal. The parties are allowed to make arrangements by agreeing to certain rules under which the matter may be resolved. It is of no importance that the law appropriate to those parties is England’s. Choice of the applicable law for the resolution of disputed in the arbitration is not limited to a specific jurisdiction as long as it does not contradict any provisions[37].

The English Arbitration Act 1996 allows for parties to seek intervention of the court where they feel that the matter was not resolved fairly. However, the aggrieved party is supposed to wait till arbitration process has concluded in order to present their grievances to court. Due process has to be followed before presentation of the matter in court[38]. Although the arbitral ruling may be reversed by the court, arbitrators may not be assumed to have contravened the law. The author further indicates that arbitrators can only be held legally accountable for passing the wrong award on when they contravene the legal procedures while giving such an award. Under such circumstances, the court may vacate the arbitral award on the ground that the arbitration process was null and void. However, if the grievances are unfounded by the court, the arbitral award stays and the guilty party is supposed to comply[39].

2.4 Grounds for Challenging Wrong Arbitration Awards

            Most jurisdictions use common approach to evaluate the authenticity, relevance as well as legality of an arbitral award. In English courts an arbitration award can be challenged on the ground of substantive jurisdiction stipulated on section 67 of the arbitration act. The award can also be challenged on the ground of severe irregularities facing the tribunal, the arbitral process or the award (section 68) or an appeal on a specific section of the law. The applicant of such challenges must evidently show the irregularities affecting the tribunal, the arbitration events or the award and show how such resulted to an injustice. The court consequently applies a substantive test to establish whether there were indeed irregularities in the arbitration process. Possible court action after verifying presence of severe irregularities in the process is nullification of the whole arbitral process. The author however established that successful challenges of arbitration awards based on severe irregularities in the arbitral process are not common. The study established this fact after extensive review of arbitral cases in UK as well as previous research on the topic[40].

Serious irregularity is a legal indiscretion which can possibly to lead to considerable injustice to the aggrieved party. This is where the tribunal may fail to comply with common legal duties to act reasonably and without prejudice and to adhere to procedures which are apt to circumstances in the case. The tribunal process may be assumed to have undergone grievous irregularity due to arbitrators exceeding their powers through acting beyond their substantive jurisdiction. The tribunal may also overlook the agreement of the parties and fail to conduct the arbitration process in respect to the agreed procedure. Under this circumstance, the injured party can seek intervention of the court to have the final decision reversed. Where a tribunal award holds uncertain or ambiguous effects to the applicant, it can be nullified citing severe irregularity as it was held in Metropolitan Property Realizations Ltd v Atmore Investments Ltd (2008)[41].

In the US, appeals of any nature aimed at reopening an arbitration process or vacating such an award can only be made in federal courts. The federal and state laws have limited options under which they can overturn the ruling of arbitration. The US courts may vacate an arbitral award where the arbitration process was fraudulent, corrupt and such an award was made through undue means like in the case of Parsons & Whittemore Overseas Co Inc v Societe Generale De L’Industrie Du Papier (1974). The courts may also nullify the award where there exists evidence of partiality among the arbitrators. This is where one or more of the arbitrators may have entered in to corrupt dealings with a party to the case. The arbitration process may also be challenged in federal or state court where the arbitrators were evidently involved in misconduct through malicious refusal to accept a genuine plea to postpone the arbitration date upon presentation of sufficient cause by the appellant or in refusing to pay attention to information or proof pertinent to the disagreement or any other misconduct by which the privileges of the distressed party has been prejudiced. The federal and state courts in US may also vacate an arbitral award if it is established that the arbitrators exceeded their authority in giving the award[42].

In AU, the circumstances under which an arbitral award may be challenged are limited. It may however be possible to challenge an award even in an event where rules and procedure of the arbitration process provide that the ruling is legally abiding and final. Commercial arbitration in Australia is controlled by two independent statutory systems. One is the state based regime which regulates all concerns of domestic arbitration while the other is the Federal statutory regime which regulates all matters concerning international arbitration. In 2010, the AU amended International Arbitration Act 1974 (Cth) (‘IAA’) to ensure that the present day practice of arbitration conforms to the internationally required arbitration norms. All domestic states are also committed towards instituting a uniform and internationally accepted arbitration laws. This ensures that when arbitral award is successfully challenged in court, it is treated as invalid by all national courts. Major reasons under which an arbitral award may be successfully disputed in courts under the arbitration laws of AU include; lack of a legitimate arbitration accord; failure of the process to comply with the legal process; injure of public policy. Section 34A (1) of Commercial Arbitration Act 2010 permits a party to appeal the arbitral ruling only if the parties to the arbitration had expressly indicated a provision for an appeal in their agreement[43].

2.5 Previous Appeals on International Arbitration Judgments and Actions

The have been numerous appeals challenging arbitral awards on the ground that arbitrators were careless in giving such awards. Most international commercial cases are solved through arbitration process for timeliness and cost saving. There have been numerous cases involving denial of justice leading to annulment of the arbitral award by the international law. For example the international law nullified the award in Stran Greek Refineries v. Greece. The award was nullified on the basis that the arbitration clause in the parties’ agreement was not followed. In this case, the arbitral tribunal did not execute the award in full consideration of the arbitration agreement between the parties. Execution of the award would have resulted to denial of justice to one party. The international arbitration law demands for fair and equitable treatment under the principle of justice denial. The Bilateral Investment Treaties (BIT) Model of 2004 recognizes the obligation for jurisdictions not to deny justice on the account of fair and equitable treatment[44].

The question of jurisdiction has also led to multiple appeals in international arbitration. International arbitration laws allow the parties to choose the jurisdiction in which they like to base the ruling. However, Article 36(6) of the ICJ confers powers to the ICJ to rule based on its jurisdiction of choice. In Saudi Arabia v. Arabian American Oil Co. Ltd (ARAMCO) the arbitral award was challenged on the ground that the tribunal had no competence to determine its jurisdiction. Similarly, in Sojuznefteexport (SNE) v. Joc Oil Ltd the arbitrators had to decide the jurisdiction in which to decide on the case since the parties to the agreement had not decided on the preferred jurisdiction. The tribunal observed that the arbitration agreement was illegitimate and needed not to be exercised. However, the tribunal went ahead to rule on the case whose award was consequently nullified by the court after an application by one party on the ground that the tribunal exceeded it powers. Connectively, in Texaco Overseas Petroleum Co./ California Asiatic Oil Co. v. Government of Libya the arbitral award was nullified after an appeal by one party on the basis that the arbitrator was not competent enough to determine the jurisdiction of the case[45].

3.0 METHODOLOGY

The research findings and analysis are derived in the secondary data. Secondary data is obtained from review of the past studies on the subject matter, the evaluation of the international arbitration legal framework, assessment of different jurisdictions arbitration laws, and evaluation of previous arbitration proceedings and court cases that challenged the arbitration awards. The research reviewed different arbitration decisions and the substantive and curial laws that were applied. The evaluation of different arbitral laws by various countries like UK and USA helped to understand the power of the arbitrator when the parties choose these countries laws as their substantive laws in the terms of reference and contractual agreement. The research assessed the past court cases that challenged the powers of the arbitrators and the arbitral awards.

The cross research collects the information from different online libraries, credible websites, journal articles, law books and law reports. The integration of different sources of information helps to eliminate the information biasness and inaccuracy. In order to offer solid recommendations, the study evaluated US punitive damages in light of the application in the international arbitration in United Kingdom. The evaluation of the process of issuing the punitive damages and their overall impact to the image of institutions issuing them helped to identify the impact that they would have on the international arbitration institutions and rules making bodies. The review of the past studies on the topic helped the research to build its concepts and philosophy on the past’s findings as well as recommendations made in the reviewed studies. As such, this research relies entirely on the secondary information that is obtained from the described sources to arrive at the intended results.

4.0 FINDINGS

            After extensive review of literature and multiple rulings in previous cases, the study has established that arbitrators have limited powers upon which they can give an award in arbitration agreement. The study established that the powers of an arbitrator are clearly defined in the arbitration act of any jurisdiction under which the arbitrator is allowed to perform his obligations. In relation to the second objective of the study, it was established that punitive damages cannot be used in international arbitration UK as it is in the case for US due to lack of commonality in legal definition of the practice. It was established that the idea punitive damages would contravene the notion of public policy when applied in the UK international arbitration law hence cannot be adopted. In regard to the third objective of the study, it was established that the US and AU have similar grounds with the international arbitration law in UK in challenging wrong awards. The major impact of wrong arbitrator award was found to be vacation of such award and nullification of the arbitration process. Finally, the study established that wrong or careless arbitrators’ awards can be disputed in courts where they are either nullified or vacated.

5.0 DISCUSSION OF FINDINGS

            This research explores the powers of an arbitrator and the effect of wrong or inappropriate awards by an arbitrator. The research revealed that an arbitrator operates under limited powers. Any arbitral award can successfully be appeal in a court of law. Under this section, the research aims to review the significance of the findings in respect to the research objectives.

5.1 Powers of Arbitrator in International Arbitration Agreement

            The review of previous studies on the topic as well as review of past judicial proceedings in the subject area reveals that arbitrators are governed by limited laws. The study revealed that arbitrators’ powers are derived from the arbitration agreement. This means that the powers of the tribunal emanates from the agreement of the parties. The powers of arbitrators are broad but may be limited by the parties in the arbitration agreement based on the nature of their agreement. The parties to arbitration agreement may confer extensive powers to the tribunal where they expressly state that Arbitration Act will be applying in the agreement. This hence confers all powers contained in the Act to the arbitrators. The Federal Arbitration Act of US has enacted a national policy in support of arbitrators where the parties to an agreement have decided to seek arbitration in respect to interstate commerce cases as observed in Southland Corp. v. Keating (1984)[46].

The research found out that basically all powers held by an arbitrator come from the agreement. The powers such as procedure of the arbitration, the venue of the arbitration, the authority to give an award, and the authority to decide on the jurisdiction are impliedly or expressly conferred to the tribunal by the parties to that agreement. If for instance the agreement contains rules of a certain institution such as rules of arbitration from a chattered organization, then the powers of the arbitrators are derived from such rules. The only power of arbitrator which is expressly conferred to them by the Arbitration Act is the power to very existence of an actionable arbitration agreement. The tribunal has been conferred the power to rectify and amend any errors contained in the agreement therein. Additionally, the arbitrators have powers to decide on questions arising on grounds of law. The arbitrators have powers to make a decision on issues regarding bad faith, dishonesty and fraud arising from the discord. Further powers of arbitrators’ independent from the agreement are such as the power to order interim payment to meet the costs of the arbitration as well as the powers to order the parties to finalize on claim details[47].

The study found that international arbitration takes form of local arbitration structure in any jurisdiction with the major difference being that it is based on the international law and fully complies with the ICJ provisions, UNCITRAL model laws on arbitration and the ICC provisions. The major challenge with international arbitration was established to be the selection of jurisdiction on which the agreement is based. The international law of arbitration however confers powers to the arbitrator to choose a desirable jurisdiction with absence of such in the arbitration agreement. Where the parties have already identified a jurisdiction of their choice, the arbitrators are supposed to operate within the powers conferred to them by that jurisdiction. It was also established that under no circumstance are the arbitrators allowed to exceed their powers. Failure to abide to the stipulated provisions in arbitration agreement by the parties may lead to an appeal and possible nullification of the process by the international court. The arbitrator is not required to exercise authority in excess of the powers conferred expressly by the agreement or by the Arbitration Act like in the case of Himpurna California Energy Ltd. v. Republic of Indonesia[48].

5.2 Punitive Damages in UK International Arbitration Law

            The study established that punitive damages cannot be adopted in the International Arbitration law of UK. Although punitive or exemplary damages are successfully used in US as a remedy for careless arbitrators’ award, the same cannot apply in international law. As earlier mentioned in the literature review, the idea of punitive damages is not common with concept of civil law. Some states in the US are shy to grant the arbitrators powers to execute punitive damages in arbitration tribunals. The major obstacle and may be the only hindrance to implement the concept of exemplary damages in the international arbitration law in UK is the public policy concern[49]. The international law of arbitration in UK limits legal exercise of non-arbitrary issues and those against the public policy based on the constructs of legal definition of the term. The idea of whether the action is non-arbitrary is the only loophole through which courts can exercise or fail to exercise such a ruling on the matter. The international law asserts that public policy must be upheld since it involves the sovereignty of a nation and the authenticity in supervision of the court’s actions under all circumstances. However, public policy is the slightest loophole which can be easily manipulated by jurisdictions to fit their meaning and definition[50].

There has been unending arguments about the suitability of imposing exemplary damages by arbitrators in the perspective of public policy. The report by the ICC on the appropriateness of exemplary damages in a 1989 convention established convincing arguments of the opinion that punitive damages should not be applied in the international arbitration law. The report found out that exemplary damage should be allowed to operate in arbitration law under any appropriate circumstances. The study also established various factors under which the UK international arbitration law cannot implement punitive damages. The international law holds that the authority to enforce penalties is by discretion an authority of the state law and cannot be passed to an arbitral tribunal through a concealed agreement. The international arbitration law also seems to be concerned with the legal qualification of the arbitrators. The international law of arbitration views it as illegitimate for arbitrators who do not have any legal training to impose exemplary damages as it may attract questions of fairness due to limitation of judicial review[51].

Granting the arbitrators the power to inflict punitive damages is likely to result to undesirable effects to the process of selecting arbitrators and the willingness of independent parties to serve as arbitrators. This is because affecting punitive damages on either of the party in an agreement have great consequences and comes along with additional responsibilities. Due to these obligations parties may not be willing to serve as arbitrators. Additionally, punitive damages may frighten parties to seek arbitration as the most efficient method of dispute resolution. This would hence contradict the UK’s law of arbitration idea of arbitration as the most efficient means of resolving international commercial disputes. Under this notion, parties may seek full litigation process which is lengthy and costly to avoid arbitration. The idea of punitive damages in arbitration may also be affected by malice hence obstructing justice. Some researchers argue that jurisdictions which uphold the power of arbitrators to award punitive damages such the US minimize instances of duplication of proceedings where it is necessary for such damages to be passed on one party. This is where the complainant files a parallel suit in court for punitive damages[52].

5.3 Grounds for Challenging Wrong Awards

Based on the findings of the study, the grounds for challenging wrong arbitral awards are more or less the same in most jurisdictions. The major ground on which an arbitral award can be challenged involves serious violation of the arbitration process standards and requirements usually explicitly stipulated in the arbitration act. The rules of arbitration for UK are similar to those of US and AU apart from slight deviation in specific clauses. Under the three jurisdictions, the study established that similar manner of challenging an arbitral award are followed. This is where in all the jurisdictions an arbitral award is challenged in court under specific ground of irregularities in the process. All the three jurisdictions, an arbitration award can be challenged where an arbitrator acts in excess of the powers mandated to him or her by the arbitration act. This is where the tribunal rules or conducts its operations in excess of the powers accorded to it by the agreement of the parties. Under the international arbitration law of UK this is indicated in Arbitration Act 1996 part 1 section 70. The only difference in challenging wrong awards among the three jurisdictions is the nature and timeframe in which the process is exercised[53].

The UK, US and AU laws of arbitration view corruption, deception and undue means as the major grounds for challenging an arbitral award by the court. In all the jurisdictions, an application for appeal should not be presented to the court in excess of 30 days from the ruling of the award. The petitioner should provide comprehensive evidence indicating that the arbitrator acted in substantial default of the arbitration agreement or acted centrally to the provisions of the arbitration law thereof. Where the reasons proposed by the appellant does not satisfy the court or does not seem sufficient for the court to dismiss the arbitrators’ award, the court may decide to stay such an award. The appellant is supposed to meet the additional costs involved in placing an appeal. Where the appellant fail to comply with such stipulations by the court, the appeal is consequently dismissed. In all the three jurisdictions, the court holds the overall authority to decide whether the award was awarded wrongly. The study observed a slight with the arbitration law of the AU in the concept of wrong award. This is where a wrong award cannot be appealed where the parties to the arbitration did not include such a clause in their agreement[54].

The arbitration laws of UK, US and the AU grants immunity to the arbitrators and hence they cannot be liable for any action or role played in the arbitration process. For this reason, the Arbitration Act allows for parties to challenge any arbitral ruling in court with support of concrete evidence to that event.  The only event where an arbitrator may be charged for actions performed in the arbitration process is only where evidence indicates that he acted in bad faith. Otherwise, the arbitrator may not be punished for any omissions by him or his appointees in his duties of discharging functions bestowed on him by the arbitration agreement and the law. The study observed that similar approach is used in challenging arbitration awards in international arbitration cases in these jurisdictions. For example the process through which the arbitrators’ award in Stran Greek Refineries v. Greece under UK jurisdiction was appealed relates to the manner in which Texaco Overseas Petroleum Co./ California Asiatic Oil Co. v. Government of Libya was appealed under US jurisdiction. This clearly indicates similarity in grounds for challenging arbitration awards under international arbitration law of UK, US and the AU[55].

5.4 Impact of Wrongful Awards by the International Arbitrator

            The study established several impacts of wrongful awards by international arbitrators. The most significant impact established was denial of justice where a party to the agreement fails to get a fair and equitable treatment. Saipem v. Bangladesh is a perfect example where the later received an unjust award which was later illegally affirmed by the ICC and could not be reversed whatsoever. Wrongful awards can lead to incursion of unnecessary and unforeseen costs by the concerned party. The arbitration tribunal may fail to evaluate certain pertinent matters in the case presented to it leading to awards that do not match or relate to the matters at hand. Although the arbitration tribunal may rule in favor of the complainant, they may feel to meet their expectations leading to incursion of costs as witnessed in GEA Group Group Aktiengesellschaft v. Ukraine. The research has established that wrongful awards in international arbitration lead to potential loss of confidence in the arbitration process. This is where parties become uncertain about solving their dispute through arbitration process and alternatively seek full litigation process[56].

6.0 CONCLUSION

The international arbitration is the leading dispute resolution method that is common for the disputes emanating from the international commercial agreements as well as the international relationships. The arbitration is usually a creation of the contract, meaning the parties to the contract makes an agreement to submit any dispute that might arise in the course of their business or relationship to the an arbitrator. There are ad hoc and institutional arbitrators whose procedures and proceeding are regulated by the contractual agreement and the applicable law. This means that the conduct of the arbitrator and powers are shaped and limited by the substantive law and curial law as well as the agreement of the parties.

The UNCITRAL and other rule making bodies have formulated model laws that guide the arbitration proceedings that are carried out by the institutions like ICC. In additional to the model laws, the specific states have their own arbitral laws, such as the arbitration act of England. The parties to the contract choose the laws that will; govern the arbitration process. The international arbitration laws require the parties to the arbitration process to exclude themselves from the legal challenge of the arbitration award, to the extent that is allowed by the applicable law. However, there are grounds against which the arbitral awards can be challenged in the court of law. Usually the court of law can be called upon in the constitution of the arbitration tribunal and after the arbitration, process has ended.

In some instances, however, the court is called upon to set aside the arbitral award on the ground that the arbitrator has exceeded power or they have acted in contravention of the applicable law and the parties’ agreement. Wrong award can erode the reputation of the arbitration institution and lower the level of confidence that various corporations have on the arbitrating institution. In order to prevent the wrong award, the international arbitration institutions have such as the ICC have formulated procedural laws that guide the arbitration proceeding with each award been required to be presented to the ICC secretariat before it is full rendered. Despite the existence of this measures, there have not been established a solid mechanism for preventing and punishing careless awards.

6.1 Recommendations

The punitive damages that generally used for protection the damages in US can be used in international arbitration because many countries have adopted civil laws as opposed to common law that favours the implementation of the punitive damages. In order to remedy the problem of wrongful award, the international arbitration institutions and rules making bodies, as well as the individual states should establish a legal framework that ensures that the arbitrator gives award according to a given legal frame work taking into consideration the inherent factors of the case at hand. It is advisable for the ICC and other international arbitration institutions to liaise with the member states in order to ensure that the member states have laws that support the ICC model law. This will reduce the friction between the local courts and the arbitrators and facilitate the creation of an environment in which the fair award can be delivered by the arbitrators and thus amassing confidence to the international arbitrators.

 

 

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Anderson Jr, Irvine H. Aramco, the United States, and Saudi Arabia: A study of the dynamics of foreign oil policy, 1933-1950.Princeton University Press, 2014.

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Bracking, Sarah. “The Lesotho highlands corruption trial: who has been airbrushed from the dock?.” (2001): 302-306.

Brower, Charles N. “W (h) ither International Commercial Arbitration?.”Arbitration International 24, no. 2 (2008): 181-198.

Carrington, Paul D. “Enforcing International Corrupt Practices Law.” Mich. J. Int’l L. 32 (2010): 129.

Chukwumerije, Okezie. “Judicial Supervision of Commercial Arbitration: The English Arbitration Act of 1996.” Arbitration International 15, no. 2 (1999): 171-191.

Clift, Jenny. “UNCITRAL Model Law on Cross-Border Insolvency-A Legislative Framework to Facilitate Coordination and Cooperation in Cross-Border Insolvency, The.” (2004): 307.

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Delaume, Georges R. “State Contracts and Transnational Arbitration.” American Journal of International Law (1981): 784-819.

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Herrmann, Gerold. “The UNCITRAL Model Law–its background, salient features and purposes.” Arbitration International 1, no. 1 (1985): 6-39.

Maniruzzaman, A. F. M. “International Arbitration: Law and Practice by Gary B. Born [Book Review].” Born [Book Review](January 27, 2013) (2013).

Miceli, Thomas J., and Michael P. Stone. “The Determinants of State‐Level Caps on Punitive Damages: Theory and Evidence.” Contemporary Economic Policy 31, no. 1 (2013): 110-125.

Mistelis, Loukas A., and Stavros L. Brekoulakis, eds. Arbitrability: international & comparative perspectives.Vol. 19.Kluwer Law International, 2009.

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Cases and Statutes

Ex parte Costa and Head (Atrium) Ltd., 486 So.2d 1272 (Ala. 1986); Regina Construction Corp. v. Envirmech Contracting Corp., 565 A.2d 693 (Md. 1989)

63 U.S.L.W. at 4195 (1995).

40 N.Y.2d 354, 353 N.E.2d 793, 386 N.Y.S.2d 831 (1976).

Lofft 1, 98 Eng. Rep. 489 (C.P. 1763).

 

 

 

 

 

[1]Stipanowich, Thomas. “Arbitration: The’New Litigation’.”University of Illinois Law Review 2010, no. 1 (2010).

[2] Ibid 1

[3]Abbott, Kenneth W., and Duncan Snidal. “Why states act through formal international organizations.” Journal of conflict resolution 42, no. 1 (2008): 3-32.

[4] Ibid 2

[5]Brower, Charles N. “W (h) the International Commercial Arbitration?.”Arbitration International 24, no. 2 (2008): 181-198.

[6]Bishop, R. Doak, and Edward G. Kehoe, eds. The art of advocacy in international arbitration.Juris Publishing, Inc., 2010.

[7]Stipanowich, Thomas. “Arbitration: The’New Litigation’.” University of Illinois Law Review 2010, no. 1 (2010).

[8] Ibid 1

[9] Rau, Alan Scott. “Arbitral power and the limits of contract: The new trilogy.”American Review of International Arbitration, Forthcoming (2011): 11-11.

[10][10]Golbert, Rebecca. “The Global Dimension of the Current Economic Crisis and the Benefits of Alternative Dispute Resolution.” Nevada Law Journal 11, no. 2 (2011): 9.

[11]Bracking, Sarah. “The Lesotho highlands corruption trial: who has been airbrushed from the dock?.” (2001): 302-306.

[12] Fraser, David. “English Arbitration Act 1996: Arbitration of International Commercial Disputes Under English Law.” Am. Rev. Int’l Arb. 8 (1997): 1-367.

[13]Sandy, David. “Independence, Impartiality, Arbitration and the Human Rights Act in England.” Arbitration International 20, no. 3 (2014): 305-322.

[14]Chukwumerije, Okezie. “Judicial Supervision of Commercial Arbitration: The English Arbitration Act of 1996.” Arbitration International 15, no. 2 (1999): 171-191.

 

[15]Clift, Jenny. “UNCITRAL Model Law on Cross-Border Insolvency-A Legislative Framework to Facilitate Coordination and Cooperation in Cross-Border Insolvency, The.” (2004): 307.

[16]Anderson Jr, Irvine H. Aramco, the United States, and Saudi Arabia: A study of the dynamics of foreign oil policy, 1933-1950.Princeton University Press, 2014.

 

[17]Delaume, Georges R. “State Contracts and Transnational Arbitration.” American Journal of International Law (1981): 784-819.

[18]Wells, Louis T. “Double Dipping in Arbitration Awards? An Economist Questions Damages Awarded to KarahaBodas Company in Indonesia.”Arbitration International 19, no. 4 (2003): 471-482.

[19]Samuel, Adam. “The Effect of the Place of Arbitration on the Enforcement of the Agreement to Arbitrate.” Arbitration International 8, no. 3 (1992): 257-280.

[20]Mistelis, Loukas A., and Stavros L. Brekoulakis, eds. Arbitrability: international & comparative perspectives.Vol. 19.Kluwer Law International, 2009.

[21]Craig, William Laurence, William W. Park, and Jan Paulsson. International chamber of commerce arbitration.No. 594.OceanaPubns, 2012

 

[22]Herrmann, Gerold. “The UNCITRAL Model Law–its background, salient features and purposes.” Arbitration International 1, no. 1 (1985): 6-39.

[23] Brower, Charles N. “W (h) ither International Commercial Arbitration?.”Arbitration International 24, no. 2 (2008): 181-198.

[24] Tweeddale, Andrew, and Keren Tweeddale. Arbitration of commercial disputes: international and English law and practice. Oxford University Press, 2005.

 

[25] Silberman, Linda J. “Topic In Transnational Litigation: Civil Procedure Meets International Arbitration: A Tribute To Hans Smit.” Am. Rev. Int’l Arb. 23 (2012): 439-575.

[26] Stipanowich, Thomas. “The Third Arbitration Trilogy: Stolt-Nielsen, Rent-A-Center, Concepcion and the Future of American Arbitration.” American Review Of International Arbitration (2012).

[27] Lofft 1, 98 Eng. Rep. 489 (C.P. 1763).

[28] Sebok, Anthony J. “Normative Theories of Punitive Damages: The Case of Deterrence.” Philosophical Foundations of the Law of Torts (OUP 2014) (2014).

 

[29] Sebok, Anthony J. “Normative Theories of Punitive Damages: The Case of Deterrence.” (2014).

[30] 40 N.Y.2d 354, 353 N.E.2d 793, 386 N.Y.S.2d 831 (1976).

[31] Miceli, Thomas J., and Michael P. Stone. “The Determinants of State‐Level Caps on Punitive Damages: Theory and Evidence.” Contemporary Economic Policy 31, no. 1 (2013): 110-125.

[32] Ex parte Costa and Head (Atrium) Ltd., 486 So.2d 1272 (Ala. 1986); Regina Construction Corp. v. Envirmech Contracting Corp., 565 A.2d 693 (Md. 1989)

 

[33] Englard, Izhak. “Punitive Damages–A Modern Conundrum of Ancient Origin.” Journal of European Tort Law 3, no. 1 (2012): 1-20.

[34] 63 U.S.L.W. at 4195 (1995).

[35] Englard, Izhak. “Punitive Damages–A Modern Conundrum of Ancient Origin.” 18.

[36] Ibid, 12.

[37] Born, Gary B. “Law Governing International Arbitration Agreements: An International Perspective, The.” SAcLJ 26 (2014): 814.

[38] Ibid, 814.

[39] Maniruzzaman, A. F. M. “International Arbitration: Law and Practice by Gary B. Born [Book Review].” Born [Book Review](January 27, 2013) (2013).

[40] Drummonds, Henry. “The Public Policy Exception to Labor Arbitration Award Enforcement: A Path Through the Bramble Bush.” Willamette Law Review 49 (2013): 2012-27.

[41] Ibid, 27.

[42] Sebok, Anthony J. “Normative Theories of Punitive Damages: The Case of Deterrence.”17.

[43] Ibid

[44] Reisman, W. Michael, and Heide Iravani. “Arbitration and National Courts: Conflict and Cooperation: The Changing Relation of National Courts and International Commercial Arbitration.” Am. Rev. Int’l Arb. 21 (2010): 5-315.

 

[45] Blackaby, Nigel, Constantine Partasides, Alan Redfern, and M. Hunter. “1. An overview of international arbitration.” Redfern and hunter on international arbitration (2009): 1-83.

 

[46] Strong, Stacie I. “The Sounds of Silence: Are US Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration in Cases of Contractual Silence or Ambiguity?.” Michigan Journal of International Law 30 (2009): 1017.

[47] Ibid

[48] Seidenberg, Steven. “International arbitration loses its grip.” ABAJ 96 (2010): 50.

[49] Gibson, Christopher S. “Arbitration, civilization and public policy: Seeking counterpoise between arbitral autonomy and the public policy defense in view of foreign mandatory public law.” Penn State Law Review, Forthcoming (2009): 09-26.

[50] Carrington, Paul D. “Enforcing International Corrupt Practices Law.” Mich. J. Int’l L. 32 (2010): 129.

[51] Sebok, Anthony J. “Normative Theories of Punitive Damages: The Case of Deterrence.” 121.

[52] Ibid

[53] Reisman, W. Michael, and Heide Iravani. “Arbitration and National Courts: Conflict and Cooperation: The Changing Relation of National Courts and International Commercial Arbitration.” Am. Rev. Int’l Arb. 21 (2010): 5-315.

[54] Ibid

[55] Franck, Susan D. “The legitimacy crisis in investment treaty arbitration: privatizing public international law through inconsistent decisions.” Fordham Law Review 73 (2005): 1521.

[56] Drahozal, Christopher R. “Enforcing Vacated International Arbitration Awards: An Economic Approach.” American Review of International Arbitration 11 (2000): 451.

 

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