The purpose of this Article is to examine the pitfalls of international arbitration on a broad scale. These pitfalls can be roughly grouped into two categories: (1) those endemic to the process of dispute resolution by a "private extra-judicial tribunal which derives its power from the agreement of the parties,"2 including difficulties unforeseen in the drafting of the agreement that add delay, complications, and expense to the proceedings; and (2) those related to using the rules of a particular institution. Ideally, planning and skillful drafting can eliminate both types of pitfalls and preserve the advantages of arbitration over other available national judicial forums. The pitfalls inherent in institutional arbitration can be eliminated either by drafting provisions for ad hoc arbitration or by drafting complementary provisions to the rules of a chosen arbitral institution. Although the two categories of pitfalls are related, this Article will treat them separately. The initial focus will be on the choice of either ad hoc or institutional arbitration. This Article will consider supplementing by contract the rules of three of the major arbitral institutions: the American Arbitration Association (AAA), the International Chamber of Commerce (ICC), and the UNCITRAL rules. The most useful comparisons of the three bodies of rules converge at several points: the method of submission to the institution; the selection of arbitrators; the costs of the proceedings; the availability of provisional relief and antifrustration devices; the principles of procedure; the principles for determining applicable law; the form and substance of the award; and the enforceability of the award.
James M. Rhodes and Lisa Sloan,
The Pitfalls of International Commercial Arbitration,
17 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol17/iss1/4