Clear, Distinct Legal Framework for International Arbitration

Arbitral Jurisdiction and Kompetenz-Kompetenz

The law that applies to international arbitrations venued in New York affirms that arbitrators have authority to determine questions concerning their own jurisdiction whenever an arbitration clause manifests the parties’ clear and unmistakable intention to confer such authority upon them. Importantly, New York courts have found such clear and unmistakable intention where the parties to an arbitration agreement have agreed to give the arbitrator the power to determine their own jurisdiction. The institutional rules of the ICC, the ICDR, JAMS and the CPR all provide that authority.

Deference to Arbitrators

Under the law applicable to arbitrations held in New York, most defenses to arbitrability, such as whether the underlying contract is not enforceable on grounds of fraud or unconscionability, have been deemed issues for the arbitrators, rather than courts, to decide.

New York courts have stressed that arbitrators have authority to control the arbitration process without court interference.

The Separability Doctrine

New York courts recognize the doctrine of separability, providing that arbitration clauses are separate from the contracts in which they are embedded so that arbitrators retain their jurisdiction notwithstanding certain challenges to the validity of a contract containing an arbitration clause.

No Restrictions on the Nationality or Professional Background of Arbitrators

In New York, there are no restrictions on the nationality or qualifications of those who can serve as arbitrators or counsel in international arbitrations. In cases where parties seek an arbitrator or counsel who is (or is not) of a particular nationality, it is worth noting that New York is home to experienced international arbitrators and counsel of many different national backgrounds.

No Punitive Damages, and No Requirement of Broad Discovery

While arbitrators in the United States do, in principle, have the authority to award punitive damages, such awards are extremely rare in domestic cases and even rarer in international cases. Furthermore, parties may deprive arbitrators of such authority in their contract or by adopting rules, such as the ICDR Rules or the JAMS International Arbitration Rules, that prohibit arbitrators from awarding punitive damages.

Similarly, choosing New York as the place for an international arbitration does not mean that the parties will be subject to United States discovery devices such as depositions or burdensome e-discovery. There is nothing in New York law that would prohibit parties from choosing to limit (or even forbid) prehearing disclosure in arbitration. Moreover, New York is home to a great many practitioners and arbitrators who are experienced in international arbitration, and who would not seek or allow broad U.S.-style discovery in an international arbitration proceeding. Rather, such practitioners and arbitrators would likely follow the procedures more typically used in international arbitrations throughout the world, such as those set forth in the IBA Rules on the Taking of Evidence in International Arbitration.

Such practices were acknowledged in Guidelines for the Arbitrator’s Conduct of the Pre-Hearing Phase of International Arbitrations, adopted by the New York State Bar Association (NYSBA) in 2010. In these Guidelines, the NYSBA makes clear as a matter of policy that “unless the parties agree otherwise, international arbitration in New York is conducted in accordance with internationally accepted practices,” both with respect to pre-hearing exchange of evidence and otherwise.

Indeed, there is a commitment in international arbitration in New York to:

  1. streamline pre-hearing disclosure to assure that it focuses on matters that are directly material and for which there is a demonstrable need
  2. assure that pre-hearing disclosure does not include depositions or production of extraneous electronic information
  3. often employ written witness statements
  4. limit hearings to documents and testimony that are directly relevant.