ThomasMoreAI International Arbitration
This skill provides expert guidance for international commercial and investment arbitration.
Core Capabilities
1. Commercial Arbitration
- ICC, LCIA, SIAC arbitration
- Ad hoc arbitration
- Arbitration agreements
- Procedural matters
2. Investment Arbitration
- ICSID arbitration
- BIT claims
- Investment treaties
- State-investor disputes
3. Enforcement
- New York Convention
- Recognition procedures
- Setting aside challenges
- Execution
4. Arbitration Strategy
- Seat selection
- Arbitrator selection
- Procedural strategy
- Cost management
Commercial Arbitration Institutions
Major Institutions
| Institution | Seat | Specialty |
|---|---|---|
| ICC | Paris | General commercial |
| LCIA | London | General commercial |
| SIAC | Singapore | Asia-Pacific |
| HKIAC | Hong Kong | Asia, China-related |
| SCC | Stockholm | Eastern Europe, energy |
| ICDR | New York | Americas |
| VIAC | Vienna | Central Europe |
| DIAC | Dubai | Middle East |
| CIETAC | Beijing | China |
ICC Arbitration
Key Features:
- Terms of Reference
- Scrutiny of awards
- Case management conference
- Expedited procedure available
ICC Costs:
- Administrative fee (based on amount in dispute)
- Arbitrator fees (ad valorem)
- Advance on costs
ICC Timeline:
Request for Arbitration → Answer (30 days) →
Constitution of Tribunal → Terms of Reference →
Case Management Conference → Procedural Timetable →
Written Submissions → Document Production →
Hearing → Post-Hearing Briefs → Award
LCIA Arbitration
Key Features:
- Hourly arbitrator fees
- Expedited formation
- Early determination procedure
- Consolidation provisions
LCIA Advantages:
- More predictable costs
- Efficient administration
- English law expertise
- Strong confidentiality
SIAC Arbitration
Key Features:
- Expedited procedure (< SGD 6M)
- Emergency arbitrator
- Early dismissal procedure
- Consolidation and joinder
SIAC for Asia:
- Neutral seat for region
- Pro-arbitration judiciary
- Strong enforcement record
- Indian and Chinese party acceptance
Arbitration Agreements
Essential Elements
ARBITRATION CLAUSE - KEY COMPONENTS
1. Agreement to arbitrate
"Any dispute arising out of or in connection with
this contract shall be finally resolved by arbitration"
2. Institutional rules or ad hoc
"under the Rules of the ICC"
3. Seat of arbitration
"The seat of arbitration shall be Singapore"
4. Number of arbitrators
"The arbitral tribunal shall consist of three arbitrators"
5. Language
"The language of the arbitration shall be English"
6. Governing law of contract
"This contract shall be governed by English law"
Model Clauses
ICC Model Clause:
"All disputes arising out of or in connection with the
present contract shall be finally settled under the
Rules of Arbitration of the International Chamber of
Commerce by one or more arbitrators appointed in
accordance with the said Rules."
LCIA Model Clause:
"Any dispute arising out of or in connection with this
contract, including any question regarding its existence,
validity or termination, shall be referred to and finally
resolved by arbitration under the LCIA Rules, which Rules
are deemed to be incorporated by reference into this clause.
The number of arbitrators shall be [one/three].
The seat, or legal place, of arbitration shall be [City].
The language to be used in the arbitral proceedings
shall be [language].
The governing law of the contract shall be the
substantive law of [jurisdiction]."
SIAC Model Clause:
"Any dispute arising out of or in connection with this
contract, including any question regarding its existence,
validity or termination, shall be referred to and finally
resolved by arbitration administered by the Singapore
International Arbitration Centre ("SIAC") in accordance
with the Arbitration Rules of the Singapore International
Arbitration Centre ("SIAC Rules") for the time being in
force, which rules are deemed to be incorporated by
reference in this clause."
Pathological Clauses
| Issue | Problem | Solution |
|---|---|---|
| Non-existent institution | "Chamber of Commerce of Geneva" | Identify correct institution |
| Hybrid clause | "Arbitration or litigation" | Choose one mechanism |
| Impossible procedure | Contradictory requirements | Clarify and amend |
| Missing seat | No seat specified | Default rules apply |
Arbitral Procedure
Typical Procedural Timetable
PHASE 1: COMMENCEMENT (Weeks 1-8)
- Request/Notice of Arbitration
- Response
- Constitution of Tribunal
PHASE 2: PRELIMINARY (Weeks 9-16)
- Procedural Conference
- Terms of Reference (ICC)
- Procedural Order No. 1
- Document production schedule
PHASE 3: WRITTEN SUBMISSIONS (Weeks 17-32)
- Statement of Claim
- Statement of Defense
- Reply
- Rejoinder
PHASE 4: DOCUMENT PRODUCTION (Weeks 20-28)
- Requests for production
- Objections
- Tribunal decision
- Production
PHASE 5: WITNESS/EXPERT STATEMENTS (Weeks 33-44)
- Fact witness statements
- Expert reports
- Reply statements/reports
PHASE 6: HEARING (Weeks 45-48)
- Pre-hearing conference
- Evidentiary hearing
- Closing submissions
PHASE 7: POST-HEARING (Weeks 49-56)
- Post-hearing briefs
- Cost submissions
- Award
IBA Rules on Evidence
Document Production (Article 3):
- Request to produce
- Objections (privilege, confidentiality, unreasonable burden)
- Tribunal decision
Witness Evidence (Articles 4-5):
- Written witness statements
- Cross-examination at hearing
- Tribunal examination
Experts (Articles 5-6):
- Party-appointed experts
- Tribunal-appointed experts
- Expert conferencing
Procedural Tools
| Tool | Purpose |
|---|---|
| Bifurcation | Separate liability/quantum |
| Document-only arbitration | No oral hearing |
| Witness conferencing | Concurrent expert testimony |
| Chess clock | Time management |
| Tribunal secretary | Administrative support |
Investment Arbitration
ICSID Arbitration
Requirements:
- Contracting State (or national/entity)
- Written consent
- Legal dispute
- Arising directly out of investment
ICSID Features:
- Self-contained system
- No seat in national territory
- Annulment procedure (not appeal)
- Automatic enforcement
Investment Treaty Protections
| Standard | Description |
|---|---|
| Fair and equitable treatment | Good faith, legitimate expectations |
| Full protection and security | Physical and legal security |
| Non-discrimination | National treatment, MFN |
| Expropriation | Direct and indirect taking |
| Free transfer | Repatriation of funds |
| Umbrella clause | Contractual obligations |
Bilateral Investment Treaties (BITs)
Key Provisions:
- Definition of investor and investment
- Substantive protections
- Dispute resolution mechanisms
- Duration and termination
Common Claims:
- Regulatory expropriation
- FET violations
- Denial of justice
- Arbitrary measures
New York Convention
Convention Framework
Purpose: Recognition and enforcement of foreign arbitral awards
Contracting States: 172 (as of 2024)
Requirements for Enforcement:
- Valid arbitration agreement
- Proper procedure
- Award is binding
- Subject matter arbitrable
- Not contrary to public policy
Grounds for Refusal (Article V)
| Ground | Description |
|---|---|
| V(1)(a) | Invalid agreement |
| V(1)(b) | No proper notice, unable to present case |
| V(1)(c) | Award beyond scope |
| V(1)(d) | Composition/procedure not as agreed |
| V(1)(e) | Award not binding or set aside |
| V(2)(a) | Subject matter not arbitrable |
| V(2)(b) | Contrary to public policy |
Enforcement Procedure
1. Obtain certified copy of award
2. Obtain certified copy of arbitration agreement
3. Translate documents (if needed)
4. File application in enforcement court
5. Serve on award debtor
6. Opposition (limited grounds)
7. Court decision
8. Execute judgment
Setting Aside
Common Grounds
| Jurisdiction | Grounds |
|---|---|
| France | Excess of jurisdiction, due process, public policy |
| England | Substantive jurisdiction, serious irregularity, point of law |
| Singapore | Similar to UNCITRAL Model Law |
| Switzerland | Jurisdiction, composition, due process, public policy |
Time Limits
| Jurisdiction | Deadline |
|---|---|
| France | 1 month from service |
| England | 28 days from award |
| Singapore | 3 months from receipt |
| Switzerland | 30 days from receipt |
Costs
Cost Components
- Institutional fees: Administration
- Arbitrator fees: Time or ad valorem
- Legal fees: Counsel
- Expert fees: Technical experts
- Witness expenses: Travel, preparation
- Hearing costs: Venue, transcription
- Translation: Documents, hearings
Cost Allocation Approaches
| Approach | Description |
|---|---|
| Costs follow the event | Loser pays (English approach) |
| American rule | Each party bears own costs |
| Proportional | Based on degree of success |
| Mixed | Institution fees shared, legal costs follow event |
Cost Management
- Early case assessment
- Phased budgeting
- Document production limits
- Efficient hearing management
- Third-party funding consideration
Emergency Arbitration
Features
| Institution | Availability | Timeline |
|---|---|---|
| ICC | Article 29 | 15 days for decision |
| LCIA | Article 9B | Expedited |
| SIAC | Schedule 1 | 14 days |
| HKIAC | Schedule 4 | 15 days |
Emergency Relief Types
- Preservation of assets
- Preservation of evidence
- Maintenance of status quo
- Security for claim
Integration with Other Skills
- litigation: Parallel court proceedings
- contract-lifecycle: Arbitration clauses
- corporate-ma: M&A dispute resolution
- us-federal-courts: US enforcement
- uk-commonwealth: English arbitration law
Reference Files
For detailed guidance:
references/institution-comparison.md- Institutional rules comparisonreferences/enforcement-guide.md- New York Convention proceduresreferences/investment-arbitration.md- ICSID and BIT claims