1996年に作成したものです。

ADVANTAGE AND DISADVANTAGE OF INTERNATIONAL ARBITRATION UNDER REPRESENTATIVE STANDARD ARBITRATION RULES VERSUS INTERNATIONAL LITIGATION AS A METHOD TO RESOLVE INTERNATIONAL DISPUTES

Masafumi Kawamura)

            International arbitration can be either "institutional" or "ad hoc". Reputed arbitral institutions [FN1] have their own standard arbitration rules [FN2]. The parties to an institutional arbitration are not obliged to choose the standard rules of the institution, but usually they do so. As for ad hoc arbitration, the rules adopted by the United Nations Commission on International Trade Law ("UNCITRAL Rules") exist as standard rules. The parties to an arbitration can also create their own rules by themselves. Creating the rules from scratch, however, needs time and efforts, and also involves several risks. Incomplete rules may result in additional disputes between the parties. There is also more uncertainty in enforceability of arbitral awards granted according to tailor-made arbitration rules than those granted according to representative standard rules. Most parties to arbitration practically do not create the rules from scratch but use one of the standard rules. This paper examines international arbitration under representative standard rules in comparison with international litigation as a method to resolve international disputes. This paper does not focus on the arbitration under tailor-made arbitration rules.

I. ENFORCEABILITY OF DECISION

            There is no widely accepted convention on enforcement of foreign judgements. Regional conventions on the enforcement exist [FN3] but neither the United States nor Japan is a signatory to any of them. As for international arbitral awards, in contrast, the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention"), with 98 signatories as of July 1, 1994, provides for their recognition and enforcement. Both of the United States and Japan are signatories to the New York Convention. Existence of the New York Convention causes big difference in enforceability between international arbitral awards and foreign judgements.

A. ENFORCEABILITY OF INTERNATIONAL ARBITRAL AWARDS UNDER THE NEW YORK CONVENTION

            The New York Convention applies to (i) arbitral awards made in the territory of a country other than the country where recognition and enforcement is sought and (ii) arbitral awards that are considered "non-domestic". (Article I(1)) The New York Convention allows its signatories "on the reciprocity" to "declare that it will apply the [New York] Convention to the recognition and enforcement of awards made only in the territory of another Contracting State." (Article I(3)) As of July 1, 1994, 56 signatories including the United States and Japan had made this reservation. The New York Convention also allows its signatories to "declare that it will apply the [New York] Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of the State making such declaration". (Article I(3)) As of July 1, 1994, 33 signatories including the United States but excluding Japan had made this reservation.

            Courts can influence international arbitration at three stages. First, according to the conditions under the national law a court can vacate arbitral awards granted in its jurisdiction when a party seeks the court to set aside the awards -- vacating arbitral awards. Second, a court can judge enforceability of the arbitration agreement when a party brings a lawsuit despite of arbitration agreement -- recognition and enforcement of arbitration agreement. Third, a court can judge enforceability of arbitral awards when a party seeks the court to enforce them -- recognition and enforcement of arbitral awards. I examine the third stage in this section I.A. and examine the first stage as a ground to refuse recognition and enforcement of arbitral awards in section I.A.1.c below. I refer the second stage in section II.A. below.

            Under the New York Convention arbitral awards, in principle, shall be recognized as binding and shall be enforced.(Article III) Recognition and enforcement of arbitral awards, however, may be refused upon the following grounds. (Article V) [FN4]:

(1) Incapacity of a party or invalidity of the arbitration agreement;

(2) Improper notice to a party of the appointment of an arbitrator or of the arbitral proceedings, or the party was otherwise unable to present its case;

(3) The arbitral award was beyond the scope of the submission;

(4) Defects in the composition of the arbitral tribunal or in the arbitral procedure;

(5) The arbitral award is not binding on the parties;

(6) The subject matter of the dispute is not capable of resolution by arbitration under the law of the country of enforcement; or

(7) The award conflicts with the public policy of the country of enforcement.

            I examine here the grounds of (6) and (7) above -- non-arbitrability of the subject matter (Article V(2)(a)) and public policy concern (Article V(2)(b)).[FN5] Scopes of these grounds are not clear from the provisions themselves. The scopes are decided by the courts of the country of enforcement under the national law of the country. I also examine here the ground of (5) above -- lack of binding effect on the parties (Article V(1)(e)). Causes to set aside or suspend arbitral awards are determined by the courts under the national law of the country where arbitral awards are granted.

1. THE UNITED STATES

a. NON-ARBITRABILITY

            Non-arbitrability of subject matter reflects a special national interest in judicial resolution rather than arbitrable resolution. Classic examples of non-arbitrable subject matters include antitrust, the validity of intellectual property rights (patents, trademarks, etc.), family law and the protection of certain weaker parties. [FN6]

            The U.S. Supreme Court has construed non-arbitrable subject matter narrowly in an international context.

(i) SECURITIES TRANSACTIONS -- Scherk v. Alberto-Culver Co.

            In Scherk v. Alberto-Culver Co.[FN7], the Supreme Court admitted arbitrability of alleged violations of the Securities Exchange Act, stating that "the agreement of the parties . . . to arbitrate any dispute arising out of their international commercial transaction is to be respected and enforced by the federal courts in accord with the explicit provisions of the Arbitration Act" even though there were alleged violations of the Securities Exchange Act. [FN8]

            The Supreme Court distinguished its decision in Wilko [FN9] which had held in a domestic context that securities disputes were not arbitrable. In Scherk, the Supreme Court emphasized importance of the role of arbitration agreement in an international context, stating: in contrast to Wilko, a purely domestic case, in Scherk "in the absence of the arbitration provision considerable uncertainty existed at the time of the agreement, and still exists, concerning the law applicable to the resolution of disputes arising out of the contract. Such uncertainty will almost inevitably exist with respect to any contract touching two or more countries, each with its own substantive laws and conflict-of-laws rules. A contractual provision specifying in advance the forum in which disputes shall be litigated and the law to be applied is, therefore, an almost indispensable precondition to achievement of the orderliness and predictability essential to any international business transaction." [FN10]

(ii) ANTITRUST MATTERS -- Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.

            In Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. [FN11], the Supreme Court held that antitrust disputes were subject to arbitration in an international context with relying on Scherk [FN12] and Bremen [FN13].

            The Supreme Court as in Scherk pointed out that international context requires more to enforce the parties' agreement than domestic context, stating: "concerns of international comity, respect for the capacities of foreign and transnational tribunals, and sensitivity to the need of the international commercial system for predictability in the resolution of disputes require that we enforce the parties' agreement, even assuming that a contrary result would be forthcoming in a domestic context". [FN14] The Supreme Court emphasized the federal policy requiring to enforce contractual choice-of-forum provisions, stating: "[t]he Bremen and Scherk establish a strong presumption in favor of enforcement of freely negotiated contractual choice-of-forum provisions. Here, as in Scherk, that presumption is reinforced by the emphatic federal policy in favor of arbitral dispute resolution. And at least since this Nation's accession in 1970 to the Convention, . . . ., and the implementation of the Convention in the same year by amendment of the Federal Arbitration Act, . . . that federal policy applies with special force in the field of international commerce". [FN15]

            The Supreme Court rejected "the proposition that an arbitration panel will pose too great a danger of innate hostility to the constraints on business conduct that antitrust law imposes" [FN16], and concluded that "[t]he mere appearance of an antitrust dispute does not alone warrant invalidation of the selected forum on the undemonstrated assumption that the arbitration clause is tainted" [FN17], that "potential complexity should not suffice to ward off arbitration" [FN18] and that "[t]he importance of the private damages remedy. . . does not compel the conclusion that it may not be sought outside an American court." [FN19]

b. PUBLIC POLICY CONCERN

            The leading case in the United States on the public policy concern under the New York Convention is Parsons & Whittemore Overseas Co. Inc. v. Societe Generale de l'Industrie du Papier [FN20].

            In Parsons, plaintiff, American company contracted to construct a mill for defendant, Egyptian manufacturer. The American company delayed the construction. "The American company argued that the contract's force majeure clause should be recognized in light of the U.S. government's severing of diplomatic ties with Egypt and the U.S. government's subsequent withdrawal of financial backing for the project." [FN21] The arbitral tribunal recognized the American company's force majeure defense as good only during limited period. Plaintiff appealed from an order of the district court confirming the foreign arbitral award. Plaintiff argued that the award was against U.S. public policy.

            In Parsons, the Second Circuit denied the American company's public policy defense, stating: "[t]o read the public policy defense as a parochial device protective of national political interests would seriously undermine the Convention's utility." [FN22] The Second Circuit pointed out that "the Convention's public policy defense should be construed narrowly" [FN23] and held that "[e]nforcement of foreign arbitral awards may be denied on this basis only where enforcement would violate the forum state's most basic notions of morality and justice." [FN24] This standard is equivalent to that of public policy concern in enforcement of foreign judgements. Restatement Second of the Conflict of Laws 117, comment c, at 340 (1971) states: "c. Foreign nation judgements. . . . The fact that suit on the original claim could not have been maintained in a State of the United States does not mean that a judgement rendered on the claim in a foreign nation will necessarily be refused enforcement by the courts of that State. In fact, enforcement will usually be accorded the judgement except in situations where the original claim is repugnant to fundamental notions of what is descent and just in the State where enforcement is sought."

c. VACATION OF ARBITRAL AWARDS

            "If the merits of the award can still be appealed to a second arbitral instance or to a court, the losing party can successfully invoke Article V(1)(e) on the basis that the award has not become binding." [FN25]

            United States Arbitration Act provides the following as the grounds for vacating the arbitral awards. (Section 10) [FN26]

(1) Award procured by corruption, fraud, or undue means,

(2) Evident partiality or corruption in an arbitrator,

(3) Misconduct by the arbitrators, or

(4) Arbitrators exceeded their powers or misexecuted so that no mutual final and definite award was made.

            In addition to the statutory grounds, arbitral awards may be vacated for manifest disregard of the law. "'Manifest disregard of the law' by arbitrators is a judicially-created ground for vacating their arbitration award, which was introduced by the Supreme Court in Wilko v. Swan, 346 U.S. 427, 436-37, 74 S.Ct. 182, 187-88, 98 L.Ed. 168 (1953). . . . Although the bounds of this ground have never been defined, it clearly means more than error or misunderstanding with respect to the law. . . .The error must have been obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator. Moreover, the term 'disregard' implies that the arbitrator appreciates the existence of a clearly governing legal principle but decides to ignore or pay no attention to it."[FN27] Courts have applied the "manifest disregard" standard sparingly and with deference to the arbitral results in an international context.[FN28] In the case of "manifest disregard" of the law such as antitrust or securities, however, courts are likely to apply "manifest disregard" standard even in an international context. (See the opinion in Mitsubishi mentioned in section II.A. below.)

2. OTHER COUNTRIES

            England [FN29], France [FN30], Australia, Argentina [FN31] and Belgium [FN32] also, same as the United States, give difference between domestic arbitral awards and international ones, and give less stringently control on the latter.[FN33]

B. ENFORCEABILITY OF FOREIGN JUDGEMENTS

            Different from international arbitral awards, neither the United States nor Japan is a party to an international convention on enforcement of foreign judgements. To the extent U.S. party or Japanese party seeks them, recognition and enforcement of foreign judgements are governed by the national law of the country where they are sought.

1. THE UNITED STATES

            In the United States, "[t]he recognition and enforcement of foreign-country judgments is governed by the applicable state law, even when sought in federal court. . .The practice on recognition and enforcement of foreign country judgments within the fifty states is basically the same. That practice is reflected in common law decisions and in those states (17) that have adopted the Uniform Foreign Country Money-Judgments Recognition Act in cases interpreting the statute. . .Although the Uniform Foreign Money Judgments Act applies only to money judgments, the practice of enforcement and recognition extends to other judgments as well." [FN34]

            The Uniform Foreign Money Judgements Act [FN35] provides for the following as mandatory grounds for non-recognition:

(1) Lack of impartial tribunals and procedures compatible with due process of law,

(2) Lack of personal jurisdiction, and

(3) Lack of subject matter jurisdiction.

            The Uniform Foreign Money Judgements Act also provides for the following as discretionary grounds for non-recognition:

(1) Inadequate notice to defendant,

(2) Judgement obtained by fraud,

(3) Contrary to public policy,

(4) Conflict of judgement with another final judgement,

(5) Inconsistency of proceeding in the foreign court with forum selection clause, and

(6) Serious inconvenience of the foreign court in the case of jurisdiction based only on personal service.

            The standard for public policy concern to be applied to recognition and enforcement of foreign judgements is same as that to be applied to enforcement of international arbitral awards. (See the opinion in Parsons mentioned in section I.A.1.b. above)

2. JAPAN

            The Japan's Code of Civil Procedure provides for the following requirements to recognize foreign judgements. (Article 200)[FN36]

(1) Finality of a foreign judgement,

(2) Competent jurisdiction,

(3) Service of process,

(4) Comply with public policy, and

(5) Reciprocity.

            The requirements for recognition of foreign judgements in Japan seems literally lesser than those under the Uniform Foreign Money Judgements Act in the United States. However, The public policy mentioned in Article 200(3) of the Japan's Code of Civil Procedure is broader than that of the United States, and covers defense grounds such as unfair procedures, biased tribunals, violations of due process, lack of timely notice, and judgments obtained by fraud. [FN37]

C. EVALUATION

            In the respect of enforceability of decision, international arbitration is generally more advantageous than international litigation. As mentioned above, the New York Convention assures enforceability of international arbitral awards, and signatories of the Convention are likely to give more enforceability to international arbitral awards than to domestic arbitral awards. There may be countries which give foreign judgements not less enforceability than international arbitral awards. It is not necessarily easy, however, to know about that by researches on the relevant foreign laws.

            There may be exceptions for the general advantage of international arbitration. If the country of the other party is not a signatory of the New York Convention, international arbitration loses the basis for the advantage. If a party knows that foreign judgements made by the chosen judicial forum are granted sufficient enforceability in the country of the other party, international arbitration also loses the basis for the advantage. If each party chooses each other the judicial forum in the country of the other party, judgements of the forum will be fully enforceable against the other party. The parties to an international transaction need to compare enforceability between international arbitral awards and foreign judgements on case by case basis.

II. AVOIDABILITY OF MULTIPLE PROCEEDINGS

            If a party can bring a lawsuit at a forum different from the forum chosen by the parties in advance, choice-of-forum comes to useless. This situation results in possible multiple proceedings, which produce additional expenses and uncertainty in enforceability of arbitral awards or judgements due to the potential for inconsistent results.

A. INTERNATIONAL ARBITRATION

            The New York Convention obligates its signatories to recognize a written agreement to arbitrate.(Article II(1)) A court of signatory, "when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed." (Article II(3)) The New York Convention, therefore, assures to avoid multiple proceedings to the extent the arbitration agreement is not judged as null and void.

            It is worth noting, however, that in Mitsubishi the Supreme Court indicated that it may judge an arbitration agreement null and void if it allows the parties to avoid application of U.S. antitrust law, stating: "[w]e merely note that in the event the choice-of-forum and choice-of-law clauses operated in tandem as a prospective waiver of a party's right to pursue statutory remedies for antitrust violations, we would have little hesitation in condemning the agreement as against public policy." [FN38]

            In addition, if multiple parties are involved in a dispute and the arbitration cannot include all the parties, multiple proceedings may occur.[FN39] To avoid such situation, arbitration agreement should be drafted in the context of multi-party transactions to include all the related parties in a single arbitration.

B. INTERNATIONAL LITIGATION

            There remains more uncertainty in avoidability of multiple proceedings if the parties choose a judicial forum. The avoidability depends on the national law of the country where a party brings a lawsuit.

1. AUSTRALIAN SEA-CARRIAGE OF GOODS ACT

            In Australia, choice-of-forum clauses with respect to bill of lading are expressly restricted. Australian Sea-Carriage of Goods Act provides: "[a]ll parties to any bill of lading or document relating to the carriage of goods from any place in Australia to any place outside Australia shall be deemed to have intended to contract according to the laws in force at the place of shipment, and any stipulation or agreement to the contrary, or purporting to oust or lessen the jurisdiction of the Courts of the Commonwealth or of a State in respect of the bill of lading or document, shall be illegal, null and void, and of no effect." (Article 9(1))

2. ENGLAND

            In the Fehmarn [FN40], Court of Appeal in England declined to enforce a choice-of-forum clause on a bill of lading choosing Soviet Union as forum.

            In the Fehmarn, "[a] cargo was loaded at a Russian port by a Russian shipper on board the Fehmarn, a ship owned by a German company. The cargo was, by the terms of the bill of lading, shipped in apparent good order and condition and was to be delivered at the port of London in like order and condition. An English company purchased the cargo and became the holders of the bill of lading, thereby agreeing to be bound by its terms, which included stipulations that all questions and disputes should be determined according to Russian law and judged in the U.S.S.R. The cargo-owners alleged that at the port of London the cargo was found to be three tons short and contaminated. The ship was surveyed in London, the cargo-owners and the shipowners being represented at the survey. The ship was a frequent visitor to England, and the cargo-owners asked the shipowners to give security for their claim, and threatened to arrest the ship when it next came to England if security was not given. The shipowners were willing to submit the dispute to a private arbitrator but objected to giving security. The cargo-owners then issued a writ against the shipowners claiming damages for breach of the contract of carriage evidenced by the bill of lading." [FN41]

            The court pointed out that the choice-of-forum was prima facie valid but was enforceable only at the discretion of the court, stating: "a stipulation that all disputes should be judged by the tribunals of a particular country is not absolutely binding. Such a stipulation is a matter to which the courts of this country will pay much regard and to which they will normally give effect, but it is subject to the overriding principle that no one by his private stipulation can oust these courts of their jurisdiction in a matter that properly belongs to them." Having balanced Russian element and English element in the case the court declined to enforce the choice-of-forum clause choosing Soviet Union as forum, stating: "[h]ere the Russian element in the dispute seems to be comparatively small. The dispute is between the German owners of the ship and the English owners of the cargo. It depends on evidence here as to the condition of the goods when they arrived here in London and on evidence of the ship, which is a frequent visitor to London. The correspondence leaves in my mind, just as it did in the learned judge's mind, the impression that the German owners did not object to the dispute being decided in this country but wished to avoid the giving of security. The dispute is more closely connected with England than with Russia, and I agree with the judge that sufficient reason has been shown why the proceedings should continue in these courts and should not be stayed. I would therefore dismiss the appeal."

3. THE UNITED STATES

            In Bremen v. Zapata Off-Shore Co.[FN42], the Supreme Court declared that choice-of-forum clauses should be enforced except under very limited circumstances.

            In Bremen, "[p]etitioner Unterweser made an agreement to tow respondent's drilling rig from Louisiana to Italy. The contract contained a forum-selection clause providing for the litigation of any dispute in the High Court of Justice in London. When the rig under tow was damaged in a storm, respondent instructed Unterweser to tow the rig to Tampa, the nearest port of refuge. There, respondent brought suit in admiralty against petitioners. Unterweser invoked the forum clause in moving for dismissal for want of jurisdiction and brought suit in the English court, which ruled that it had jurisdiction under the contractual forum provision." [FN43]

            The Supreme Court pointed out that freedom to contract should be respected in an international context, stating: "[t]he expansion of American business and industry will hardly be encouraged if, notwithstanding solemn contracts, we insist on a parochial concept that all disputes must be resolved under our laws and in our courts. . . . We cannot have trade and commerce in world markets and international waters exclusively on our terms, governed by our laws, and resolved in our courts." [FN44], and also stating: "[t]here are compelling reasons why a freely negotiated private international agreement, unaffected by fraud, undue influence, or overweening bargaining power, such as that involved here, should be given full effect. . . . It cannot be doubted for a moment that the parties sought to provide for a neutral forum for the resolution of any disputes arising during the tow. Manifestly much uncertainty and possibly great inconvenience to both parties could arise if a suit could be maintained in any jurisdiction in which an accident might occur or if jurisdiction were left to any place where the Bremen or Unterweser might happen to be found. The elimination of all such uncertainties by agreeing in advance on a forum acceptable to both parties is an indispensable element in international trade, commerce, and contracting." [FN45]

            The Supreme Court admitted that there were situations in which choice-of-forum clause would be unenforceable, stating: "[a] contractual choice-of-forum clause should be held unenforceable if enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision."[FN46]

            The Supreme Court held, however, that "in the light of present-day commercial realities and expanding international trade we conclude that the forum clause should control absent a strong showing that it should be set aside"[FN47], and concluded that serious inconvenience of the chosen forum is not enough to deny enforcement of the choice-of-forum clause, stating: "[w]hatever 'inconvenience' Zapata would suffer by being forced to litigate in the contractual forum as it agreed to do was clearly foreseeable at the time of contracting. In such circumstances it should be incumbent on the party seeking to escape his contract to show that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court."[FN48]

C. EVALUATION

            It is an advantage of arbitration that the New York Convention assuring recognition of arbitration agreement causes avoidance of multiple proceedings. Multiple proceedings cause uncertainty in enforceability of foreign judgements in addition to increase in expenses. In multiple proceedings, a party may win at a forum but lose at another forum. Courts may deny enforceability of a foreign judgement conflicting with another judgement. [FN49] Parties tend to bring a lawsuit at a forum in his own country against their choice-of-forum. Courts certainly respect a judgement in its own country more than a foreign judgement. Thus, if a forum in a country of a party makes a decision conflicting with the decision made at the chosen forum, the latter perhaps cannot be enforced in the country.

            Same as mentioned in section I.C. above, the parties have to examine avoidability of multiple proceedings on case by case basis.

III. INTERIM RELIEF

            Interim relief is useful to preserve evidence or to prevent dissipation of assets. Disputes cannot be fairly resolved without relevant evidences. If assets meeting a claim are dissipated, winning a case becomes practically useless. Availability of interim relief is an important factor in considering advantage and disadvantage of a method to resolve disputes.

A. INTERNATIONAL ARBITRATION

1. INTERIM RELIEF BY COURT

a. THE UNITED STATES

            In the United States, opinion on whether the New York Convention permits a court to order interim relief is divided.

            In McCreary Tire & Rubber Company v. CEAT S.p.A.[FN50], the Third Circuit denied pre-award attachment in international arbitrations falling under the New York Convention, stating: "[u]nlike s 3 of the federal Act [FN51], article II(3) of the Convention [FN52] provides that the court of a contracting state shall 'refer the parties to arbitration' rather than 'stay the trial of the action.' The Convention forbids the courts of a contracting state from entertaining a suit which violates an agreement to arbitrate. Thus the contention that arbitration is merely another method of trial, to which state provisional remedies should equally apply, is unavailable. . . . The obvious purpose of the enactment of Pub.L. 91-368 [codified at 9 U.S.C. ss 201-208], permitting removal of all cases falling within the terms of the treaty, was to prevent the vagaries of state law from impeding its full implementation. Permitting a continued resort to foreign attachment in breach of the agreement is inconsistent with that purpose." [FN53] In addition to McCreary, there are several cases which denied pre-award attachment under the New York Convention. [FN54]

            On the other hand, there are several cases which refused to follow McCreary. [FN55] The first case which upheld the availability of pre-award attachment under the New York Convention without any restrictions was Carolina Power & Light Company v. G.I.E. Uranex.[FN56] In Carolina Power, the U.S. District Court for the Northern District of California did not follow McCreary and found that the New York Convention did not prohibit a court from ordering pre-award attachment, stating: "[t]he McCreary court makes two rather elliptical comments to distinguish the United States Arbitration Act from the Convention. First, the court notes that the Arbitration Act only directs courts to 'stay the trial of the action,' while the Convention requires a court to 'refer the parties to arbitration.' . . . From this difference the McCreary court apparently concludes that while the Arbitration Act might permit continued jurisdiction and even maintenance of a prejudgment attachment pending arbitration, application of the Convention completely ousts the court of jurisdiction. The use of the general term 'refer,' however, might reflect little more than the fact that the Convention must be applied in many very different legal systems, and possibly in circumstances where the use of the technical term 'stay' would not be a meaningful directive. Furthermore, section 4 of the United States Arbitration Act grants district courts the power to actually order the parties to arbitration, but this provision has not been interpreted to deprive the courts of continuing jurisdiction over the action. Second, the McCreary court found support for its position in the fact that the implementing statutes of the Convention provide for removal jurisdiction in the federal courts. See 9 U.S.C. s 205 (1970). . . . It must be noted, however, that any case falling within section 4 of the United States Arbitration Act also would be subject to removal pursuant to 28 U.S.C. s 1441. Furthermore, removal to federal court could have little impact on the 'vagaries' of state provisional remedies, for pursuant to Rule 64 of the Federal Rules of Civil Procedure the district courts employ the procedures and remedies of the states where they sit. Finally, it should be noted that in other contexts the Supreme Court has concluded that the availability of provisional remedies encourages rather than obstructs the use of agreements to arbitrate. . . . In sum this court will not follow the reasoning of McCreary Tire & Rubber Company v. CEAT, S.p.A., supra. There is no indication in either the text or the apparent policies of the Convention that resort to prejudgment attachment was to be precluded." [FN57]

            "Numerous commentators have also argued that attachment and other forms of interim relief should be available in arbitrations" governed by the New York Convention from various reasons including the following [FN58]:

(1) "there exists an international consensus that attachment and other forms of interim relief are available in arbitrations";

(2) "there are cases in foreign courts that considered the [New York] Convention and provided for attachment in aid of arbitration";

(3) "most of the international institutional arbitration rules expressly authorize a party to an arbitration to seek provisional remedies" [FN59];

(4) "the word 'refer' in article II(3) of the [New York] Convention means only that a court lacks jurisdiction to try the merits of the dispute when the arbitration agreement is involved; it does not preclude issuing a pre-award attachment"; and

(5) the New York "Convention necessarily contemplates a combination of both judicial and arbitral proceedings to resolve international disputes", by referring the parties to arbitration and in enforcing the arbitral awards.

b. ITALY AND ENGLAND

            The Italian Supreme Court [FN60] did not hesitate to validate a pre-award attachment pursuant to Italian law in a case in which the arbitration agreement fell under the New York Convention.[FN61]

            The English Admiralty Court [FN62] had no difficulty, either, in upholding the arrest of a vessel in connection with an action in rem when it stayed the court proceedings on the merits in virtue of Section 1(1) of the Arbitration Act of 1975 (i.e., the implementation legislation of the New York Convention in the United Kingdom).[FN63]

2. INTERIM RELIEF BY ARBITRAL TRIBUNAL

            The parties may seek interim relief in the form of an interim award from an arbitral tribunal. [FN64] The interim award shall be enforced according to Article III of the New York Convention.

B. INTERNATIONAL LITIGATION

            International litigation, which does not involve such issue as under the New York Convention, does not prevent the parties from using interim relief according to the national law of the country where the interim relief is sought.

C. EVALUATION

            As mentioned in section III.A.1.a. above, several courts in the United States have denied interim relief in international arbitrations under the New York Convention. The result, however, can be avoided by including in arbitration agreement a reservation of the right to seek an interim relief from courts.

IV. OTHER FACTORS

A. COMPETENCE AND NEUTRALITY

            Parties to an international transaction prefer to have disputes resolved at the courts in their own countries, but if that choice is not available, then in a neutral forum. Arbitration can provide a neutral forum. International arbitral tribunals are not tied to a government of any country. Even if the chosen arbitral tribunal locates in the country of a party, the arbitral tribunal is neutral. [FN65]

            A judicial forum in a third country also can provide a neutral forum to the parties. The parties, however, usually do not know much about a judicial forum in a country other than their own countries. It is not, therefore, necessarily easy for the parties to agree on a judicial forum in a third country as a competent forum to handle international disputes.

B. FLEXIBILITY

            Compared to fixed procedural rules of judicial forum, representative standard arbitration rules are more flexible. Arbitration procedure is changeable to meet the nature of disputes. ICC Rules, for example, allow arbitrators to hear related persons or, if the parties so request or agree, to decide the case on the relevant documents alone. (Article 14(1)(3))

            In addition to the flexibility in representative standard rules themselves, arbitration has flexibility in creating tailor-made arbitration rules. As mentioned in the preface above, however, creating the rules from scratch needs time and efforts, and involves several risks.

C. ATMOSPHERE

            Arbitration is conducted according to flexible rules, and decided by the arbitrators chosen by the parties themselves. It can also be conducted confidentially. (See section IV.G. below.) These factors lessen the tension between the parties and allow them to avoid win-lose contest. Arbitration allows face-saving approach with maintaining their long-term business relationships. For long-term business relationships, arbitration is more suitable than litigation.

D. ARBITRATOR

            It is not unusual that technical knowledge is required to resolve disputes. In arbitration, the parties can choose the arbitrator(s) with technical background as well as one(s) with legal expertise. Arbitration has an advantage over litigation in transactions with the potential for technology-related disputes.

E. ATTORNEY

            The parties have to use local counsel for litigation. On the other hand, they can use their own counsel for international arbitration with some exceptions [FN66].

F. DISCOVERY

            Under the Federal Rules of Civil Procedure of the United States, broad discovery is available to the parties. (Rule 26 et seq) Representative standard arbitration rules, on the other hand, do not provide for such kind of discovery. A party who wants such discovery may, therefore, prefer a judicial forum in the United States. "When discovery is sought from unwilling third parties in foreign countries or from a foreign party to the litigation, however, foreign law and practice may sharply curtail the breadth of such discovery. The methods for taking evidence abroad depend initially upon the applicable United States law and rules of procedure. Consideration must also be given to bilateral or multilateral treaties between the United States and the country in which evidence is sought. While such treaties may provide vehicles for obtaining the required evidence, they may also limit, at least in spirit, certain discovery approaches, even where the witness is a volunteer." [FN67] Thus, even if the parties choose a judicial forum in the United States or provide for broad discovery in their arbitration rules, it is uncertain whether such discovery works as they expect.

G. CONFIDENTIALITY

            International arbitration can be conducted confidentially. As mentioned in section IV.F. above, arbitration does not involve U.S. style discovery unless the parties agree otherwise. The parties can also keep arbitration procedure and arbitral awards confidential. [FN68] This confidentiality can be an advantage for the party who prefers to shield its business and trade secrets from the other party or the public including competitors. Some kinds of companies likely suffer damages in their corporate images if they are involved in disputes.

H. RULE OF DECISION

            The parties can choose the national law applicable to the merits of the dispute in both of arbitration and litigation except for the laws such as antitrust or securities, which are applied irrespective of the choice-of-law.

            In addition to choosing national law, in arbitration, the parties can authorize the tribunal to decide as amiable compositeur or ex aequo et bono in stead of applying national laws.[FN69] In such situation, the arbitrator(s) can decide according to equity and good conscience.

I. EXPENSE

            Compared to litigation, arbitration may be less expensive in that there is generally (i) little or no discovery and (ii) no appellate stage, but more expensive in that they must bear the expense of the arbitrators and the administrative fee of the tribunal. In contrast to a judicial forum provided and paid for by governments, the tribunal costs for an arbitration should be born by the parties to the arbitration. An arbitration involving a $1 million dispute conducted under the auspices of ICC, for example, "will result in an administrative charge of $14,500, and fees per arbitrator ranging from a barebones' minimum of $7,450 to a maximum of $30,000. If the dispute involves $100 million, the figures are $50,500 (administrative charge) and $51,450 minimum/$188,000 maximum (arbitrators' fees)." [FN70]

V. CONCLUSION

            As mentioned above, arbitration is generally more advantageous than litigation in an international context. Abstract comparison between international arbitration and international litigation, however, is not enough in structuring the method to resolve disputes in a specific transaction. If the country of the other party is not a signatory of the New York Convention, for example, it loses the basis for the general advantage of arbitration over litigation. Place of forum also affect the advantage and disadvantage of the method. A judicial forum of his own country may be much advantageous than an arbitral tribunal in other countries. The parties need to choose the method to resolve disputes with considering several factors peculiar to individual transactions.

FOOT NOTES

FN1. E.g., International Chamber of Commerce ("ICC"), American Arbitration Association ("AAA"), London Court of International Arbitration.

FN2. E.g., ICC Rules for Conciliation and Arbitration ("ICC Rules"), AAA International Arbitration Rules ("AAA Rules"), Rules of London Court of International Arbitration.

FN3. E.g., EEC Convention on Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters; UK-Canada Convention on Recognition and Enforcement of Judgements.

FN4. Article V of the New York Convention provides:

"1. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that:

(a) The parties to the agreement referred to in Article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or

(b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or

(c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or

(d) The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or

(e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.

2. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that:

(a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or

(b) The recognition or enforcement of the award would be contrary to the public policy of that country."

FN5. It is generally accepted that arbitrability forms part of the general concept of public policy and that therefore Article V(2)(a) can be superfluous. The New York Convention mentioned it separately only because of historical reason. See Peter van den Berg, The New York Convention of 1958 (1981) at 360 and 368.

FN6. See Peter van den Berg, supra FN5 at 369.

FN7. Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974). This case was not argued at the third stage -- recognition and enforcement of arbitral awards -- but argued at the second stage -- recognition and enforcement of arbitration agreement. In Scherk, "[a]ction was brought by American company, purchaser of European business entities, against German citizen, as seller of the business entities, to recover damages and other relief based on claim that purchaser had been defrauded in violation of the Securities Exchange Act in connection with representations concerning trademarks which were transferred as part of sale. The seller sought to stay proceedings while parties arbitrated dispute before the International Chamber of Commerce tribunal as provided by contract as the means of settling any and all controversies arising under agreement or for breach thereof." (Summary of the case by Westlaw)

FN8. Id. at 519 and 520.

FN9. Wilko v. Swan, 346 U.S. 427 (1953).

FN10. Scherk, supra FN7 at 516.

FN11. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985) As Scherk, this case was not argued at the third stage -- recognition and enforcement of arbitral awards -- but argued at the second stage -- recognition and enforcement of arbitration agreement. In Mitsubishi, "[p]etitioner-cross-respondent (hereafter petitioner), a Japanese corporation that manufactures automobiles, is the product of a joint venture between Chrysler International, S.A. (CISA), a Swiss corporation, and another Japanese corporation, aimed at distributing through Chrysler dealers outside the continental United States automobiles manufactured by petitioner. Respondent- cross-petitioner (hereafter respondent), a Puerto Rico corporation, entered into distribution and sales agreements with CISA. The sales agreement (to which petitioner was also a party) contained a clause providing for arbitration by the Japan Commercial Arbitration Association of all disputes arising out of certain articles of the agreement or for the breach thereof. Thereafter, when attempts to work out disputes arising from a slackening of the sale of new automobiles failed, petitioner withheld shipment of automobiles to respondent, which disclaimed responsibility for them. Petitioner then brought an action in Federal District Court under the Federal Arbitration Act and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, seeking an order to compel arbitration of the disputes in accordance with the arbitration clause. Respondent filed an answer and counterclaims, asserting, inter alia, causes of action under the Sherman Act and other statutes." (Syllabus of the case by Westlaw)

FN12. Supra FN7.

FN13. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972).

FN14. Mitsubishi, supra FN11 at 629.

FN15. Mitsubishi, supra FN11 at 631.

FN16. Mitsubishi, supra FN11 at 634.

FN17. Mitsubishi, supra FN11 at 632.

FN18. Mitsubishi, supra FN11 at 633.

FN19. Mitsubishi, supra FN11 at 635.

FN20. Parsons & Whittemore Overseas Co. Inc. v. Societe Generale de l'Industrie du Papier, 508 F.2d 969 (2d Cir. 1974).

FN21. Eloise Henderson Bouzari, The Public Policy Exception to Enforcement of International Arbitral Awards: Implications for Post-NAFTA Jurisprudence, Texas International Law Journal (1995).

FN22. Parsons, supra FN20 at 974.

FN23. Id.

FN24. Id.

FN25. Peter van den Berg, supra FN5 at 346.

FN26. Section 10 of the United States Arbitration Act provides:

"In either of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration--

(a) Where the award was procured by corruption, fraud, or undue means.

(b) Where there was evident partiality or corruption in the arbitrators, or either of them.

(c) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced.

(d) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

(e) Where an award is vacated and the time within which the agreement required the award to be made has not expired the court may, in its discretion, direct a rehearing by the arbitrators."

FN27. Carte Blanche (Singapore) Pte., Ltd. v. Carte Blance International, Ltd., 888 F.2d 260 at 265 (2d Cir.1989).

FN28. See Jay R. Sever, The Relaxation of Inarbitrability and Public Policy Checks on U.S. and Foreign Arbitration: Arbitration out of Control?, Tulane Law Review at 1678-1679 (1991).

FN29. "Regarding international arbitration, the Arbitration Act of 1979 permits 'exclusion agreements,' written agreements by parties not to allow judicial intervention into the arbitration. . . . By 1991, English courts appear to have generally acquiesced to the commandments of the 1979 Act. This may be a response to the increasing world competition for the business of international commercial arbitration. In numerous recent cases, the English high courts have demonstrated unprecedented restraint toward all aspects of arbitration: not only have they examined exclusionary agreements less stringently, but they have also been more unwilling to grant leave to hear appeals of arbitral proceedings." (Jay R. Sever, supra FN28 at 1682-83)

FN30. "While French courts may choose to examine awards on public policy grounds, they have not been strict about enforcing awards rendered in other jurisdictions. For example, Article 1471 [of the French Civil Code] requires arbitrators in France to provide reasoned decisions for their award; yet, French courts and arbitrators have not held that the lack of a reasoned decision in international arbitration constitutes a violation of public policy. Generally, a French court will only consider vacating a foreign arbitral award if it violates international public policy, which is not defined in the French statute." (Jay R. Sever, supra FN28 at 1685)

FN31. "Argentine courts exert rigid control over domestic arbitration. Article 737 of the National Code of Civil and Commercial Procedure summarizes inarbitrable matters as follows: (a) matters that are deemed inarbitrable for public policy reasons; [including company law, foreign investment law, antitrust, trademark and patent legislation, legal capacity of persons and family law] and, (b) matters over which a statute has granted exclusive jurisdiction to an Argentine court. International arbitration may be less stringently controlled. Especially if the arbitration has taken place in Argentina, the courts may not apply the same rigid standards. There may be some matters that are inarbitrable domestically, but arbitrable if international in character. However, in matters of "national protection in certain vital aspects of the Argentine economy related to international commercial and economic intercourse," the court may ultimately apply a stricter standard to international arbitration, because those matters can only be arbitrated within Argentina." (Jay R. Sever, supra FN28 at 1681)

FN32. "Belgium, even more than England, has radically liberalized its arbitration laws to accommodate arbitration. In 1985, in a clear effort to facilitate the booming business of international arbitration, the Belgian legislature passed an amendment to the Code judiciaire which prevented courts from annulling awards rendered in Belgium by non-Belgian parties. The 1985 Law forbids judicial intervention in international arbitration no matter how the arbitration is conducted. While one rationale for the 1985 Law was to bring Belgium in line with the British after the 1979 Act, the Belgian liberalization clearly goes much further. Most importantly, while the British 1979 Act allows parties to international arbitration to contract out of judicial review procedures, the 1985 Law absolutely forbids judicial review of an international award by a Belgian Court." (Jay R. Sever, supra FN28 at 1686)

FN33. See Eloise Henderson Bouzari, supra FN21.

FN34. Linda Silberman, Enforcement and Recognition of Foreign Country Judgments: "American Law", ALI-ABA Course of Study at 527 (1989).

FN35. Section 4 of the Uniform Foreign Money Judgments Act provides:

"(a) A foreign judgment is not conclusive if

(1) the judgment was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law;

(2) the foreign court did not have personal jurisdiction over the defendant; or

(3) the foreign court did not have jurisdiction over the subject matter.

(b) A foreign judgment need not be recognized if

(1) the defendant in the proceedings in the foreign court did not receive notice of the proceedings in sufficient time to enable him to defend,

(2) the judgment was obtained by fraud;

(3) the [cause of action] [claim for relief] on which the judgment is based is repugnant to the public policy of this state;

(4) the judgment conflicts with another final and conclusive judgment;

(5) the proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be settled otherwise than by proceedings in that court; or

(6) in the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action."

FN36. Article 200 of the Japan's Code of Civil Procedure provides:

"a foreign judgment which has become final and conclusive shall be valid only upon fulfillment of the following conditions:

(1) that the jurisdiction of the foreign court is not denied in laws and ordinances or by treaty;

(2) that the defendant defeated, being a Japanese, has received service of summons or any other necessary orders to commence procedure otherwise by a public notice or has appeared without receiving thereof;

(3) that the judgment of a foreign court is not contrary to public order or good morals in Japan; and

(4) that there is a mutual guarantee. "

FN37. Takao Sawaki, Recognition and Enforcement of Foreign Judgments in Japan, International Lawyer at 33 (1989).

FN38. Mitsubishi, supra FN11 at 637.

FN39. In the Government of the United Kingdom of Great Britain v. The Boeing Co. (998 F.2D 68 [2d Cir. 1993]) the Second Circuit held: "the district court cannot consolidate arbitration proceedings arising from separate agreements to arbitrate, absent the parties' agreement to allow such consolidation."

FN40. The Fehmarn, Court of Appeal, [1958] 1 All E.R. 333.

FN41. Headnote by Lexis.

FN42. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972).

FN43. Syllabus of the case by Westlaw.

FN44. Bremen, supra FN42 at 9

FN45. Bremen, supra FN42 at 13-14

FN46. Bremen, supra FN42 at 15

FN47. Id.

FN48. Bremen, supra FN42 at 17-18.

FN49. As mentioned in section I.B.1. above, in the United States, the Uniform Foreign Country Money-Judgments Recognition Act provides conflict of judgement with another final judgement as a discretionary ground for non-recognition of foreign judgement. Also in Japan, Osaka district court in Marubeni-America v. Kansai Iron Works (Dec. 22, 1977) held that it was against public policy to recognize and enforce a foreign judgement conflicting with an irrevocable Japanese judgement and denied recognition and enforcement of a judgement of Washington state court (Deutch v. West Coast Machinery Co., Marubeni-Iida, Inc. (Respondent), Kansai Iron Works, Ltd. (Petitioner), 497 P.2d 1311 (Wash.Sup.Ct.1972)). See Takao Sawaki, supra FN37 at 35.

FN50. McCreary Tire & Rubber Co. v. CEAT S.p.A., 501 F.2d 1032 (3d Cir. 1974).

FN51. Section 3 of the United States Arbitration Act provides: "[i]f any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration."

FN52. Article II(3) of the New York Convention provides: "[t]he court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed."

FN53. McCreary Tire, supra FN50 at 1038.

FN54. See e.g., Metropolitan World Tanker, Corp. v. P.N. Pertambangan Minjakdangas Bumi Nasional (P.M. Pertamina), 427 F. Supp. 2 (S.D.N.Y. 1975); Cooper v. Ateliers de la Motobecane, S.A., 57 N.Y.2d 408, 442 N.E.2d 1239, 456 N.Y.S.2d 728 (1982).

FN55. See e.g., E.A.S.T., Inc. of Stamford, Conn. v. M/V Alaia, 876 F.2d 1168 (5th Cir. 1989); Atwood Navigation, Inc. v. M/V Rizall, No. 89-1221, 1989 U.S. Dist. Lexis 1828 (E.D. Pa. Feb. 24, 1989); Irinkos Shipping Corp. v. Tosco Corp., No. 84-519-Z, slip op. (D. Mass. Apr. 6, 1984).

FN56. Carolina Power & Light Company v. G.I.E. Uranex, 451 F.Supp. 1044 (N.D. Cal. 1977).

FN57. Id. at 1051-1052.

FN58. See William P. Mills, III, State International Arbitration Statutes and The U.S. Arbitration Act: Unifying the Availability of Interim Relief, Fordham International Law Journal at 632-635 (1989/1990).

FN59. ICC Rules provide: "[b]efore the file is transmitted to the arbitrator, and in exceptional circumstances even thereafter, the parties shall be at liberty to apply to any competent judicial authority for interim or conservatory measures, and they shall not by so doing be held to infringe the agreement to arbitrate or to affect the relevant powers reserved to the arbitrator." (Article 8(5))

FN60. Corte di Cassazione (Sez. Un.) May 12, 1977, no. 3989, Scherk Enterprises A.G. v. Societe des Grandes Marques (Italy no. 28), validating attachment pending arbitration in Zurigh.

FN61. See Peter van den Berg, supra FN5 at 140.

FN62. Admiralty Court (Queen's Bench Division), January 13, 1978, The Rena K (U.K. no. 6).

FN63. See Peter van den Berg, supra FN5 at 140.

FN64. UNCITRAL Rules provide:

"1. At the request of either party, the arbitral tribunal may take any interim measures it deems necessary in respect of the subject-matter of the dispute, including measures for the conservation of the goods forming the subject-matter in dispute, such as ordering their deposit with a third person or ordering the sale of perishable goods.

2. Such interim measures may be established in the form of an interim award. The arbitral tribunal shall be entitled to require security for the costs of such measures.

3. A request for interim measures addressed by any other party to a judicial authority shall not deemed incompatible with the agreement to arbitrate, or as a waiver of that agreement." (Article 26)

AAA Rules also have similar provision in Article 22.

FN65. ICC Rules have the following provisions to keep impartiality of arbitral tribunals.

". . . [t]he sole arbitrator or the chairman of the arbitral tribunal shall be chosen from a country other than those of which the parties are nationals. However, in suitable circumstances and provided that neither of the parties objects within the time-limit fixed by the Court, the sole arbitrator or the chairman of the arbitral tribunal may be chosen from a country of which any of the parties is a national. . ." (Article 2(6))

"Every arbitrator appointed or confirmed by the Court must be and remain independent of the parties involved in the arbitration." (Article 2(7))

UNCITRAL Rules and AAA International Arbitration Rules have similar provisions. (See Article 6(4) of UNCITRAL Rules and Articles 6(4) and 7 of AAA Rules.)

FN66. In Japan, a foreign lawyer cannot represent the party in an arbitration even if the chosen law is not Japanese law.

FN67. Ronald E. Myrick, Obtaining Evidence Abroad for Use in United States Litigation, Suffolk Transnational Law Journal (1991).

FN68. AAA Rules, for example, provide as follows:

"Hearing are private unless the parties agree otherwise or the law provides to the contrary. The tribunal may require any witness or witnesses to retire during the testimony of other witnesses. The tribunal may determine the manner in which witnesses are examined." (Article 21(4))

"An award may be made public only with the consent of all parties or as required by law." (Article 28(5))

FN69. UNCITRAL Rules provide "The arbitral tribunal shall decide as amiable compositeur or ex aequo et bono only if the parties have expressly authorized the arbitral tribunal to do so and if the law applicable to the arbitral procedure permits such arbitration." (Article 33(2))

FN70. W. Craig, W. Park & J. Paulsson, International Chamber of Commerce Arbitration at 37 (2d ed. 1990).