Practising Virtue: Inside International Arbitration

International arbitration has developed into a global system of adjudication, dealing with disputes arising from a variety of legal relationships: between states, between private commercial actors, and between private and public entities. It operates to a large extent according to its own rules and dynamics - a transnational justice system rather independent of domestic and international law. In response to its growing importance and use by disputing parties, international arbitration has become increasingly institutionalized, professionalized, and judicialized. At the same time, it has gained significance beyond specific disputes and indeed contributes to the shaping of law. Arbitrators have therefore become not only adjudicators, but transnational lawmakers. This has raised concerns over the legitimacy of international arbitration. Practising Virtue looks at international arbitration from the 'inside', with an emphasis on its transnational character. Instead of concentrating on the national and international law governing international arbitration, it focuses on those who practise international arbitration, in order to understand how it actually works, what its sources of authority are, and what demands of legitimacy it must meet. Putting those who practise arbitration into the centre of the system of international arbitration allows us to appreciate the way in which they contribute to the development of the law they apply. This book invites eminent arbitrators to reflect on the actual practice of international arbitration, and its contribution to the transnational justice system.

Table of Contents:
David D. Caron, Stephan W. Schill, Abby Cohen Smutny, and Epaminontas Triantafilou: Practising Virtue: An Introduction Part I: International Arbitration as Part of the Transnational Justice System 1: Sundaresh Menon: The Transnational Protection of Private Rights: Issues, Challenges, and Possible Solutions 2: Alan Redfern: The Changing World of International Arbitration 3: Piero Bernardini: International Commercial Arbitration and Investment Treaty Arbitration 4: Eduardo Zuleta: International Jurisprudence, Global Governance, and Global Administrative Law 5: James H. Carter: The Culture of Arbitration and the Defence of Arbitral Legitimacy 6: Stephan W. Schill: Conceptions of Legitimacy in International Arbitration Part II: History and Sociology of International Arbitration 7: V.V. Veeder: The Historical Keystone to International Arbitration: The Party-Appointed Arbitrator - From Miami to Geneva 8: Antonio R. Parra: 'Black's Bank' and the Settlement of Investment Disputes 9: Stephen M. Schwebel: Judge Sir Hersch Lauterpacht's Report on the Revision of the Statute of the International Court of Justice 10: Oscar M. Garibaldi: Jurisdictional Errors: A Critique of the North American Dredging Company Case 11: Emmanuel Gaillard: Sociology of International Arbitration 12: Giorgio Sacerdoti: From Law Professor to International Adjudicator: The WTO Appellate Body and ICSID Arbitration Compared - A Personal Account 13: Donald Francis Donovan: The Advocate in the Transnational Justice System Part III: Authority of International Arbitral Tribunals and Its Limits 14: Gary Born and Marija Scekic: Pre-Arbitration Procedural Requirements: 'A Dismal Swamp' 15: Christoph Schreuer: At What Time Must Jurisdiction Exist? 16: Rudolf Dolzer: Local Remedies in International Treaties: A Stocktaking 17: L. Yves Fortier: Investor-State Tribunals and National Courts: A Harmony of Spheres? 18: Horacio A. Grigera Naon: Should International Commercial Arbitrators Declare a Law Unconstitutional? 19: Joseph E. Neuhaus: The Enforceability of Legislative Stabilization Clauses 20: Neil Kaplan: Non-Payment of Advances on Costs: No Pay, Can Play? 21: Julian D.M. Lew: Document Production and Legal Privilege in International Commercial Arbitration 22: David A.R. Williams and Anna Kirk: Fair and Equitable Treatment of Witnesses in International Arbitration - Some Emerging Principles Part IV: Reasoning and Decision-Making in the Arbitral Process 23: David D. Caron: Regulating Opacity: Shaping How Tribunals Think 24: Judith A.E. Gill: The Development of Legal Argument in Arbitration: Law as an Afterthought - Is It Time To Recalibrate Our Approach? 25: Mahnoush H. Arsanjani and W. Michael Reisman: Babel and BITs: Divergence Analysis and Authentication in the Unusual Decision of Kilic v. Turkmenistan 26: Kaj Hober: Reporting from the Arbitral Shop-Floor: Treaty Interpretation in Practice 27: Stanimir A. Alexandrov: Judge Brower and the Vienna Convention Rules of Treaty Interpretation 28: Epaminontas E. Triantafilou: Contemporaneity and Its Limits in Treaty Interpretation 29: Richard M. Mosk: Deliberations of Arbitrators 30: Albert Jan van den Berg: Charles Brower's Problem with 100 Per Cent-Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration 31: Michael Hwang and Joshua Lim: How to Draft Enforceable Awards under the Model Law Part V: Studies in Investment Treaty Arbitration 32: O. Thomas Johnson: The Deal with BITs: What the Parties Thought They Would Get, What They Thought They Were Giving Up to Get It, and What They Got 33: Christopher Greenwood: Reflections on 'Most Favoured Nation' Clauses in Bilateral Investment Treaties 34: Loretta Malintoppi and Hussein Haeri: The Non-Disputing State Party in Investment Arbitration: An Interested Player or the Third Man Out? 35: Francisco Orrego Vicuna: Time in International Law and Arbitration: The Chess Clock No Longer Works 36: James Crawford: Challenges to Arbitrators in ICSID Arbitration 37: Gavan Griffith and Daniel Kalderimis: 'Pure' Issue Conflicts in Investment Treaty Arbitration 38: Abby Cohen Smutny: CompensationDue in the Event of an Unlawful Expropriation: The 'Simple Scheme' Presented by Chorzow Factory and Its Relevance to Investment Treaty Disputes 39: Hans van Houtte and Bridie McAsey: FutureDamages in Investment Arbitration - A Tribunal with a Crystal Ball? 40: Arthur W. Rovine: Allocation of Costs in Recent ICSID Awards 41: Carolyn B. Lamm, Eckhard R. Hellbeck, and David P. Riesenberg: The Two Annulment Decisions in Amco Asia and 'Non-Application' of Applicable Law by ICSID Tribunals 42: Pierre-Marie Dupuy and Julie Maupin: Of Wit, Wisdom, and Balance in International Law: Reflections on the Tokyo Resolution of the Institut de Droit International

About the Author :
David D. Caron is Dean and Professor of Law at The Dickson Poon School of Law, King's College London, and is a Barrister and Arbitrator with 20 Essex Street Chambers. Stephan W. Schill is Professor of International and Economic Law and Governance at the University of Amsterdam and Editor-in-Chief of the Journal of World Investment and Trade. Abby Cohen Smutny is a Partner of the law firm White & Case LLP where she co-heads the firm's international arbitration practice in the Americas and heads the firm's public international law practice. Epaminontas E. Triantafilou is Of Counsel in the International Arbitration Group of Quinn Emanuel Urquhart & Sullivan LLP and Co-Managing Editor of the World Arbitration & Mediation Review.