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Document information Chapter 2: Legal Framework for International Arbitration

Agreements (Updated November 2023)
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International Commercial This chapter has been updated on KluwerArbitration.com and is more current than in
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still need the last print version with page numbers, please click here .
Instead of references to pages, we recommend references to section headings, e.g.
Last Reviewed Gary B. Born, International Commercial Arbitration (Third Edition), §1.02[A][2] (Kluwer
November 2023 Law International, Updated August 2022).

(1) The validity, effects and interpretation of international arbitration agreements

Bibliographic Reference depend in substantial part on a legal framework of international arbitration conventions
'Chapter 2: Legal and national arbitration legislation. These instruments eliminate historic obstacles to the
Framework for enforceability of arbitration agreements and provide a decisively “pro-arbitration”
International Arbitration enforcement regime for such agreements. This Chapter examines that legal framework,
Agreements (Updated focusing particularly on the jurisdictional requirements which must be satisfied in order
November 2023)', in Gary B. for the various parts of this regime to apply.
Born, International First, the Chapter introduces the presumptive validity of international commercial
Commercial Arbitration arbitration agreements under contemporary international arbitration conventions
(Third Edition), (© Kluwer (particularly the New York Convention) and national legislation. Second, the Chapter
Law International; Kluwer addresses the definition of an “arbitration agreement,” again under both international
Law International 2021) and national instruments. Third, the Chapter examines a series of additional
jurisdictional requirements which must be satisfied in order to bring arbitration
agreements under leading international arbitration conventions and national legislation,
including requirements that such agreements concern a “commercial,” “international”
and “defined legal relationship,” and that they apply to the resolution of “disputes.”
Finally, the Chapter addresses the role of the arbitral seat’s location in determining the
legal framework applicable to an international arbitration agreement.

§2.01 INTRODUCTION
It is sometimes said that “arbitration is a creature that owes its existence to the will of
the parties alone.” (2) That is correct, but only partially correct. Although the parties’
consent is essential for an agreement to arbitrate, the ultimate efficacy of an
international arbitration agreement depends in large part upon its validity and
enforceability in national courts, applying rules of national and international law. (3) Only
if national courts are prepared to recognize and enforce an agreement to arbitrate, under
applicable national and international law, can the parties’ will be effective.
After a dispute arises, parties sometimes reconsider their prior commitments to a
neutral, speedy and competent dispute resolution process (4) – often in favor of more
parochial, less efficient, or less experienced decision-makers. That reappraisal
frequently results in claims that the parties’ arbitration agreement never existed, is
invalid on various formal or substantive grounds, has been waived, repudiated, or
otherwise terminated, or does not apply to the parties’ dispute. The speedy and effective
resolution of such jurisdictional objections is of fundamental importance to the
international arbitral process.

[A] Presumptive Validity of International Arbitration Agreements

As discussed above, both developed states and the international business community
have taken a series of related steps over the past century to ensure the enforceability of
international arbitration agreements and the efficacy of the international arbitral
process. (5) In particular, they have developed increasingly “pro-arbitration” national
and international legal regimes that recognize the presumptive validity and
enforceability of international arbitration agreements and that provide effective
enforcement mechanisms for such agreements. These legal regimes have contributed
significantly over past decades to enhancing the efficacy of the international arbitral

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 process. (6)

[1] Presumptive Validity of International Arbitration Agreements Under International

Arbitration Conventions
Essential to the enforcement of international arbitration agreements are contemporary
international arbitration conventions. Particularly significant in this regard are the New
York Convention, the European Convention and the Inter-American Convention.
[a] New York Convention
As discussed above, one of the basic purposes of the New York Convention, as ultimately
drafted, was to facilitate the enforcement of international arbitration agreements. (7)
This was one of the Convention’s fundamental objectives – notwithstanding the fact that
the Convention was originally conceived and drafted to deal only with the recognition
and enforcement of foreign arbitral awards, not arbitration agreements; that focus
continues to be reflected in the Convention’s title, which is limited to the recognition of
arbitral awards. (8) In fact, as discussed elsewhere, it was only in the final phases of
negotiations that the Convention was extended to provide for the recognition of
arbitration agreements, as well as awards. (9)
The Convention’s objectives with regard to arbitration agreements are evidenced in the
instrument’s negotiating history. That history documents the drafters’ desire to make
arbitration agreements more readily enforceable, including more readily enforceable
than under the 1923 Geneva Protocol, in accordance with uniform international standards.
(10) National court decisions uniformly cite these objectives of the Convention. (11) As one
national court concluded:
“[The goal of the Convention was] to encourage the recognition and
enforcement of commercial arbitration agreements in international contracts
and to unify the standards by which agreements to arbitrate are observed and
arbitral awards are enforced in the signatory countries.” (12)
Consistent with these objectives, Article II(1) of the Convention establishes a basic rule of
formal and substantive validity for international arbitration agreements:
“Each Contracting State shall recognize an agreement in writing under which
the parties undertake to submit to arbitration all or any differences which
have arisen or which may arise between them in respect of a defined legal
relationship, whether contractual or not, concerning a subject matter capable
of settlement by arbitration.” (13)
Article II(1) is consistently interpreted as mandatory: courts must recognize and enforce
arbitration agreements that fall within the scope of the Convention. This has been
repeatedly affirmed in judicial decisions of all Contracting States to the Convention. (14)
That rule is elaborated, and provided an enforcement mechanism, in Article II(3) of the
Convention, which requires the courts of Contracting States to refer parties to
international arbitration agreements to arbitration unless they find “that the said
[arbitration] agreement is null and void, inoperative or incapable of being performed.”
(15) Unless one of those enumerated grounds for non-recognition is present, Articles II(1)
and II(3) mandatorily require recognition of the arbitration agreement and reference of
the parties to arbitration. (16)
As discussed in greater detail elsewhere, Article II’s rules of formal and substantive
validity and specific enforcement mechanism play a central role in the contemporary
international arbitral process. (17) They mandate a “pro-arbitration” or “pro-
enforcement” legal regime in all Contracting States which ensures the validity and
enforceability of the material terms of those international arbitration agreements which
are subject to the Convention – notwithstanding national arbitration legislation that
sometimes perpetuates or revives intermittent historical mistrust of, and discrimination
against, the arbitral process. (18) As an early commentator on the Convention observed,
this “extraordinary provision” establishes a mandatory international obligation, with
multiple facets, on Contracting States. (19)
As also discussed in greater detail below, Article II of the Convention provides the basis
for several fundamentally important rules of international law. First, Article II allocates
the burden of proof of the invalidity of an international arbitration agreement to the
party resisting enforcement of the agreement. (20) Second, Article II requires that courts

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 of Contracting States apply generally-applicable rules of contract law to the formation
and validity of international arbitration agreements, without singling out such
agreements for discriminatory requirements or burdens. (21) Third, Article II(1) permits
Contracting States to treat particular categories of disputes as “nonarbitrable” (or “not
capable of settlement by arbitration”), but requires that they do so exceptionally, and
only where necessary to achieve specific and articulated policies. (22) Taken together,
these uniform international rules have provided a highly effective and robust “pro-
enforcement” legal framework for international arbitration agreements.
Finally, and importantly, Article VII makes it clear that nothing in the Convention limits a
party’s rights to enforce an arbitration agreement under national laws, where these are
more favorable than the terms of the Convention itself. (23) This “savings” or “most
favored rights” provision is of fundamental importance to the purpose and structure of
the Convention, confirming its objective of facilitating, not restricting, the recognition and
enforcement of international arbitration agreements.
[b] European Convention and Inter-American Convention
Other significant international arbitration conventions are similar to the New York
Convention in providing substantive and formal standards affirming the presumptive
validity of international arbitration agreements. The European Convention impliedly
recognizes the presumptive validity of international arbitration agreements, (24) while
setting forth a specified, limited number of bases for invalidity. (25) More explicitly, and
paralleling Article II of the New York Convention, Article 1 of the Inter-American
Convention provides that “[a]n agreement in which the parties undertake to submit to
arbitral decision any differences that may arise or have arisen between them with
respect to a commercial transaction is valid.” (26) Again, these provisions affirm the
presumptive validity of those international arbitration agreements which are subject to
the respective Conventions and override historic (and occasional contemporary)
discrimination against the arbitral process. In so doing, these treaty provisions also play
significant roles in the contemporary international arbitral process.
[2] Presumptive Validity of International Arbitration Agreements Under National
Arbitration Legislation
National arbitration legislation in virtually all Contracting States has followed, and
implemented, the New York Convention and other international conventions in
formulating “pro-arbitration” rules of presumptive substantive and formal validity for
international arbitration agreements. As discussed in greater detail below, Article 8(1) of
the UNCITRAL Model Law is representative; it provides that a court, when it is seized of a
matter “which is the subject of an arbitration agreement shall, if a party so requests …
refer the parties to arbitration,” subject only to exceptions if the court “finds that the
agreement is null and void, inoperative or incapable of being performed.” (27)
As also discussed below, the Model Law’s enumeration of the available bases for
invalidity of arbitration agreements is based on general contract law principles and has
been narrowly construed by courts in most developed jurisdictions. (28) Like Article II(3)
of the New York Convention, Article 8 places the burden of proving the invalidity of an
arbitration agreement on the party resisting enforcement, while confining the grounds for
such invalidity to generally-applicable and non-discriminatory contract law defenses.
(29)
Courts in Model Law jurisdictions consistently emphasize the importance of both Article 8
and the obligation to enforce international arbitration agreements in accordance with
their terms. (30) In the words of one Model Law court: “[P]redictability in the enforcement
of dispute resolution provisions is an indispensable precondition to any international
business transaction and facilitates and encourages the pursuit of freer trade on an
international scale.” (31)
Legislation in other developed jurisdictions, which have not adopted the Model Law,
similarly guarantees the presumptive validity of international arbitration agreements,
generally subject only to a limited set of contract defenses. (32) This is made explicit
under §2 of the FAA in the United States, which provides that arbitration agreements
“shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in
equity for the revocation of any contract.” (33) Legislation in other jurisdictions similarly
provides for, or has been interpreted as providing for, the presumptive validity of
international arbitration agreements, subject only to defined exceptions. (34)

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 Like leading international arbitration conventions, these statutory provisions generally
supersede historic common law or statutory rules – or, in some cases, contemporary legal
regimes applicable to domestic arbitration agreements – which treat agreements to
arbitrate as revocable or contrary to public policy, or which did not (or do not) provide
for the effective enforcement of such agreements. (35) Rather, leading contemporary
arbitration legislation parallels and implements the New York Convention in adopting a
rule of presumptive validity of international arbitration agreements and establishing a
decisively “pro-arbitration” legal framework for the recognition and enforcement of such
agreements.
It is sometimes said that modern arbitration legislation renders arbitration agreements
as enforceable as other contracts, but not more so: “The [Federal Arbitration] Act was
designed … [to] place such agreements ‘upon the same footing as other contracts,’” (36)
and the legislation’s purpose “was to make arbitration agreements as enforceable as
other contracts but not more so.” (37)
Where international arbitration agreements, as distinguished from domestic arbitration
agreements, are concerned, this observation is not entirely accurate. Instead, unlike most
other categories of contracts, international arbitration agreements are subject to a
unique and specialized international legal regime (particularly pursuant to the New York
Convention and specialized contemporary national arbitration legislation (38) ) which
exceptionally guarantees the validity and enforceability of such contractual provisions.
Comparable international legal regimes and rules do not exist for other categories of
international contracts, reflecting the particular importance that both states and private
parties attach to the effective enforcement of international arbitration agreements.
Moreover, most developed states have, again unlike their treatment of other types of
contracts, (39) adopted specialized choice-of-law rules, (40) formal requirements, (41)
standards of proof, (42) interpretative principles (43) and other mechanisms (44)
designed to ensure effective enforcement of international arbitration agreements.
National legislatures and courts have done so deliberately, citing the importance of
international arbitration as a means of mitigating the peculiar jurisdictional, choice-of-
law and other uncertainties of international litigation. (45)
These actions are well-advised. Although there is superficial rhetorical appeal to the
notion that an arbitration agreement is no different from other contracts, this is
inaccurate and misleading, particularly in the international context. It is, of course, an
oversimplification to speak of the legal rules applicable to “all contracts.” Most legal
systems have developed specific rules of law applicable to particular categories of
contracts, based on the individual characteristics and requirements of those types of
contracts. (46) In formulating and interpreting the legal rules applicable to international
arbitration agreements, it is essential to take into account the characteristics of those
agreements – including in particular their international character and the nature of an
agreement to arbitrate.
As discussed above, an agreement to arbitrate is a sui generis type of contract, not
involving a typical commercial bargain but instead involving a commitment by the
parties to a particular procedure for resolving their future commercial disputes. (47)
Moreover, again almost uniquely, an agreement to arbitrate binds together parties when
their commercial cooperation has at least partially collapsed, requiring them to work
together in an adjudicative process which (often) one party will win and the other lose.
(48) Likewise, the transnational setting in which international arbitration agreements
apply also raises particular challenges and difficulties, which legal rules in the field have
been designed to overcome. (49)
It is hardly surprising, and equally necessary, that this sui generis type of agreement be
governed by a specialized legal regime, aimed at ensuring its validity and enforceability
in ways that do not exist for other categories of contracts. As outlined above, and
discussed in the remainder of this Part I, it is precisely such a specialized legal regime –
based on the New York Convention and UNCITRAL Model Law – that states have
developed and progressively refined over the past six decades.

[B] Jurisdictional Requirements for Contemporary International Arbitration

Conventions and Legislation
The pro-enforcement regimes of leading international arbitration conventions and
national arbitration legislation are not generally-applicable to all international

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 agreements or even all international dispute resolution agreements. Rather, the scope or
applicability of these regimes depends upon satisfying a number of “jurisdictional”
requirements. (50) These requirements are virtually always relevant to the application of
the New York Convention (and other international conventions), and are also often
relevant to the application of national arbitration legislation, to a particular arbitration
agreement.
The precise jurisdictional requirements that apply under a particular convention or
national arbitration statute vary, depending on the terms of the relevant instrument. In
general, however, most international conventions and national arbitration statutes
impose most or all of the following jurisdictional requirements: (a) the existence of an
“agreement to arbitrate” or “arbitration agreement”; (b) concerning a “defined legal
relationship”; (c) arising from a “commercial” relationship; (d) which is “international” or
“foreign”; (e) dealing with the resolution of a “dispute” or “disputes”; (f) “whether
contractual or not,” (g) “which have arisen or which may arise.” (51) At least arguably, the
New York and European Conventions also contain jurisdictional requirements that the
arbitration agreement be “in writing” (although some authorities treat this as a
requirement for formal validity, rather than a jurisdictional condition). (52)
As discussed below, each of these jurisdictional requirements arises in similar, and
sometimes identical, form under leading international arbitration conventions and many
national arbitration statutes. (53) Moreover, even where precise statutory formulations
differ, national arbitration legislation in Contracting States to the New York Convention is
generally interpreted consistently with the Convention. (54) Similarly, the same basic
themes and policy considerations apply in defining the scope of national arbitration
legislation as apply in the context of international conventions.
Unless all of these various jurisdictional requirements are satisfied by a particular
dispute resolution agreement, then the pro-arbitration protections of international
conventions and/or national arbitration legislation will not apply to that agreement. In
that event, the agreement will instead be subject to either other statutory regimes (i.e.,
domestic arbitration or conciliation legislation) or to preexisting common law rules
developed historically for arbitration (or other forms of dispute resolution). (55)
Importantly, however, either of these alternatives will ordinarily result in the
applicability of materially less favorable mechanisms for enforcing the dispute
resolution agreement in national courts, (56) as well as differences with regard to the
possibility of judicial interference in the dispute resolution proceedings, (57) the
interpretation of the scope of dispute resolution provisions, (58) the availability of
judicial support for the proceedings (59) and the applicability of less effective
mechanisms for enforcement of the proceedings’ outcome. (60)
[1] Jurisdictional Requirements of New York Convention
Of central importance to the arbitral process are the jurisdictional requirements of the
New York Convention. Regrettably, the Convention does not comprehensively define what
arbitration agreements are subject to its terms, instead leaving the subject largely to
judicial and academic resolution. As one commentator on the Convention has observed:
“[t]he Convention … only speaks definitively of its field of application in
respect of the arbitral award, viz., a foreign award, which is an award made in
another State. It does not define which arbitration agreement shall come
within its purview.” (61)
In fact, as discussed below, the Convention’s text does prescribe a number of
jurisdictional requirements with regard to arbitration agreements (e.g., requiring an
“agreement to arbitrate” concerning a “defined legal relationship”). (62) Interpreting
these requirements is vitally important to defining the scope of the Convention and its
“pro-arbitration” regime. Nonetheless, the drafting of the Convention’s provisions
concerning arbitration agreements was hasty and failed to address key issues, (63)
including by failing to provide a fully comprehensive definition of those arbitration
agreements that are subject to the Convention’s provisions. Instead, the Convention’s text
comprehensively addresses only what arbitral awards are entitled to the treaty’s
protections. (64)
Given the foregoing, the definition of those arbitration agreements governed by the New
York Convention must be ascertained by implication, either by reference to the
Convention’s treatment of awards or otherwise. The resulting jurisdictional requirements

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 of the Convention’s provisions regarding arbitration agreements, and the differing
interpretations of these requirements, are discussed below. In summary, these
requirements are: (a) an “agreement to arbitrate”; (b) concerning a “defined legal
relationship”; (c) arising from a “commercial” relationship; (d) which is “international” or
“foreign”; (e) dealing with the resolution of a “dispute” or “disputes.” (65) Only if all of
these jurisdictional requirements are satisfied, will an arbitration agreement be within
the scope of the Convention. Moreover, as already noted, some authorities also hold that
the Convention’s applicability depends on satisfaction of a minimum “writing”
requirement. (66)
[2] Jurisdictional Requirements of National Arbitration Legislation
The jurisdictional requirements of most national arbitration statutes are broadly similar
to those of the New York Convention. As noted above, even where the statutory text of
national arbitration legislation differs from that of the Convention, national courts in
Contracting States have sought assiduously to interpret national law consistently with the
Convention’s terms. Although statutory requirements differ from state to state, most
jurisdictions condition the scope or applicability of local arbitration legislation on the
existence of (a) an “agreement to arbitrate”; (b) arising from a “commercial” relationship;
(c) which is “international,” (d) dealing with the resolution of a “dispute” or “disputes.”
(67) In addition, some states also require that the agreement (e) concern a “defined legal
relationship”; or (f) as to certain statutory provisions, concern an agreement to arbitrate
on local territory. (68) Again, unless each of the relevant statutory requirements is
satisfied, then the national arbitration legislation will not apply. Additionally, at least
arguably, some national legislation contains a jurisdictional requirement that the
arbitration agreement be in “writing” (although some authorities treat this as a
requirement for formal validity). (69)

§2.02 DEFINITION OF “AGREEMENT TO ARBITRATE”

The applicability of most international arbitration conventions and national arbitration
statutes raises the threshold definitional question of what constitutes an “arbitration
agreement.” In general, these legal regimes will apply only if the parties have putatively
made an agreement to “arbitrate” – as opposed to an agreement to do something else.
For example, parties may agree to expert determination, conciliation, mediation, or
other forms of alternative dispute resolution, or to a forum selection clause providing for
litigation in a national court. (70) Ordinarily, none of these various forms of dispute
resolution constitutes “arbitration,” within the meaning or the coverage of the New York
Convention (or other leading international arbitration conventions) or national
arbitration legislation.
As noted above, significant legal consequences follow under virtually all international
conventions and national arbitration laws from characterization of a contractual
provision as something other than an “arbitration agreement.” (71) In these instances, the
“pro-arbitration” regimes of the New York Convention and national arbitration legislation
do not necessarily apply to the agreement (or any resulting decision). (72)
Given the importance of these consequences, there is a surprising lack of guidance under
both international conventions and national arbitration legislation relevant to the
question of what constitutes an “arbitration agreement.” Such guidance as does exist is
discussed below. As described there, the better view is that both the New York
Convention and most national arbitration legislation define “arbitration” as a process by
which parties agree to submit a dispute to a non-governmental decision-maker, selected
by or for the parties, to render a binding decision resolving a dispute in accordance with
neutral, adjudicatory procedures affording the parties an opportunity to be heard.

[A] Definitions of “Agreement to Arbitrate” in International Arbitration Conventions

There is a range of different definitions of the terms “arbitration agreement” or
“agreement to arbitrate” in contemporary international arbitration conventions.
Nonetheless, these various definitions are all broadly similar – both in what they say (and
what they do not say) and in the extent of the guidance they do (or do not) provide.
Article II(1) of the New York Convention refers to an agreement to arbitrate as including
“an agreement in writing under which the parties undertake to submit to arbitration all or
any differences which have arisen or may arise between them in respect of a defined legal
relationship, whether contractual or not.” (73) Similarly, the Inter-American Convention

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 refers to “[a]n agreement in which the parties undertake to submit to arbitral decision any
differences that may arise or have arisen between them with respect to a commercial
transaction.” (74) Even less helpfully, the European Convention provides that “an
‘arbitration agreement’ shall mean either an arbitral clause in a contract or an arbitration
agreement.” (75)
These definitions are minimally useful, in the sense that they provide some general
guidance in ascertaining what arbitration is, and what it is not. In particular, they make
clear that an arbitration agreement involves a contractual relationship between parties;
that this agreement deals with disputes or differences, either future or existing; that
these disputes will be submitted to and resolved by “arbitration”; and that the
agreement may take the form of either an arbitration clause (in a broader commercial
contract) or a separate contract (dealing only with arbitration). As discussed below, the
confirmation of various of these points is helpful, particularly against the backdrop of
historical doctrines to the contrary. (76)
At the same time, the foregoing definitions provide little specific guidance in
determining precisely what constitutes an “arbitration” agreement, as distinguished from
an agreement concerning related forms of dispute resolution. In particular, no effort is
made, or even begun, to address the fundamental definitional question of what
constitutes “arbitration.” As discussed below, this has left national courts, arbitral
tribunals and commentators with the principal responsibility for defining what
constitutes “arbitration” and an “arbitration agreement.” (77)
Despite their lack of detailed definitional language, it is relatively clear that the New
York Convention (as well as the European and Inter-American Conventions) must be
understood as prescribing a uniform international definition of “arbitration agreement.”
(78) Contracting States are therefore not free to avoid the Convention’s substantive
provisions by adopting narrow or idiosyncratic definitions of “arbitration” or an
“agreement to arbitrate” (for example, by providing that an “agreement to arbitrate”
exists only if it is governed by local law, is approved in advance by local authorities, or
provides for institutional – rather than ad hoc – arbitration). (79) The substantive content
of this international definition coincides with that under leading national arbitration
legislation and is discussed below. (80)
Moreover, given the Convention’s broad purposes, the term “arbitration agreement”
should be interpreted liberally, in order to give maximum scope to Article II’s pro-
arbitration provisions. This means, in cases of doubt, that courts and tribunals should
treat agreements for alternative dispute resolution which have the essential
characteristics of a classic “agreement to arbitrate,” or which serve the same objectives
as such an agreement, as “arbitration agreements” within the meaning of the Convention.
Again, this coincides with approaches under leading national arbitration statutes and is
discussed below. (81)

[B] Definitions of “Agreement to Arbitrate” in National Arbitration Legislation

Most national arbitration statutes adopt definitions of the term “arbitration agreement”
which are broadly similar to those in contemporary international arbitration conventions.
As with such conventions, these formulae are ultimately of only marginal direct guidance.
Article 7(1) of the UNCITRAL Model Law is representative, providing:

“‘Arbitration agreement’ is an agreement by the parties to submit to arbitration

all or certain disputes which have arisen or which may arise between them in
respect of a defined legal relationship whether contractual or not. An
arbitration agreement may be in the form of an arbitration clause in a
contract or in the form of a separate agreement.” (82)
In the United States, the FAA refers to “[a] written provision … to settle by arbitration a
controversy thereafter arising out of [a] contract or transaction, or … an agreement to
submit to arbitration an existing controversy.” (83)
Similarly, §6(1) of the English Arbitration Act, 1996, refers to “an agreement to submit to
arbitration present or future disputes (whether they are contractual or not),” (84) while the
revised French Code of Civil Procedure defines an arbitration clause as “an agreement by
which the parties to one or more contracts undertake to submit to arbitration disputes
which may arise in relation to such contract[s].” (85) Similarly, most other national laws
also lack express statutory definitions of the term “arbitration agreement” – sometimes
omitting even the partial ones contained in the UNCITRAL Model Law, FAA and French

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 Code of Civil Procedure. That is true, for example, in Switzerland, (86) Belgium, (87) and
elsewhere. (88)
The statutory definitions of “arbitration agreement” in most national arbitration
legislation are similar in effect to those in international conventions. These definitions
provide guidance regarding some characteristics of international arbitration agreements
(e.g., that an “agreement” is involved and that “existing” or “future” disputes will be
“resolved” in some manner outside national courts), without addressing the central
question of what constitutes “arbitration.” The resolution of this definitional issue has
therefore been left to national court decisions, arbitral awards and commentary.

[C] Definitions of “Agreement to Arbitrate” in National Judicial Decisions and

International Arbitral Awards
As discussed above, most definitions of the term “arbitration agreement” in international
conventions and national legislation are circular and merely incorporate the words
“arbitration” or “arbitrate.” (89) Despite their foundational importance, virtually no
international or national instrument attempts expressly to define these terms.
The absence of any statutory definition of the term “arbitration” causes no practical
difficulty in the vast majority of cases. Almost all putative arbitration agreements
expressly use the term “arbitration” (or “arbitrate”) and either provide for or permit a
process which clearly constitutes arbitration, often incorporating institutional arbitration
rules. (90) Accordingly, there are in practice relatively few instances in which it is
necessary to examine precisely what these categories of “arbitrate” or “arbitration”
include.
Nonetheless, as discussed below, occasions requiring a definition of “arbitration” do
sometimes arise – when parties agree to something more or less like arbitration, without
using that term, or when parties use the phrase “arbitration” to refer to some
contractually-prescribed dispute resolution process that differs materially from normal
arbitration, or when parties disagree about what it means to “arbitrate.” For these cases,
as well as for analytical clarity, it is necessary to provide a definition of what constitutes
“arbitration” and an “arbitration agreement.”
Preliminarily, it is trite law in virtually all developed jurisdictions that the label adopted
by the parties themselves for a dispute resolution mechanism is not decisive in
determining the true character of that mechanism. That is true in common law
jurisdictions (U.S., (91) English (92) and otherwise (93) ), as well as civil law (94)
jurisdictions.
Parties are free to call a forum selection clause or an expert determination mechanism
an “agreement to arbitrate,” but this (mis)label does not alter the nature of the
mechanism or turn it into an agreement to arbitrate. (95) It is still necessary to examine
the substance of the dispute resolution provision in order to determine, objectively,
whether it constitutes an agreement to arbitrate within the meaning of applicable
international and national instruments.
National courts have repeatedly affirmed the foregoing conclusions. One early common
law decision held that “you cannot make a valuer an arbitrator by calling him so or vice
versa,” (96) while a more recent decision held that “[n]o particular words are needed to
create a valid arbitration agreement, but the contract ‘must reflect the parties’ intent to
submit their dispute to arbitrators and to be bound by that decision.’” (97) Another court
reasoned, under the FAA, that “no magic words such as ‘arbitrate’ … are required to
obtain the benefits of the FAA. … [I]f the parties have agreed to submit a dispute for a
decision by a third party, they have agreed to arbitration.” (98) Commentary is to the
same effect. (99)
Nonetheless, as a practical matter, if the parties’ agreement provides for something
labeled “arbitration,” it is a rare case where this will be categorized as something other
than an arbitration agreement. (100) In general, only where the parties have specified a
particular procedure, that is incompatible with the fundamental character of arbitration,
but labeled the process “arbitration,” will that label be denied effect. In other cases, by
saying that they have agreed to “arbitrate,” the parties will be held to have accepted the
procedural characteristics that accompany the definition of “arbitration,” thereby giving
rise to a genuine agreement to arbitrate.
[1] What Is “Arbitration”?

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 There is general, albeit not complete, agreement among national courts, arbitral
tribunals and commentators on what the term “arbitration” means for purposes of both
international arbitration conventions and national arbitration legislation. With some
incidental variations, virtually all authorities would accept that arbitration is a process
by which parties agree to submit a dispute to a non-governmental decision-maker,
selected by or for the parties, to render a binding decision finally resolving the dispute in
accordance with neutral, adjudicatory procedures affording the parties an opportunity to
be heard. (101) This definition draws support, if not its precise wording, from a wide range
of sources.

[a] Definitions of “Arbitration”

The following definitions of arbitration are representative of international commentary
on the subject:

“two or more parties, faced with a dispute that they cannot resolve for
themselves, agreeing that one or more private individuals will resolve it for
them by arbitration, and that, if this arbitration runs its full course … it will not
be resolved by a negotiated settlement or by mediation or by some other
form of compromise, but by a decision that is binding on the parties.” (102)
“a mode of resolving disputes by one or more third persons who derive their
powers from agreement of the parties and whose decision is binding upon
them.” (103)
“a contractual method for the relatively private settlement of disputes.” (104)
“a contractual form of dispute resolution exercised by individuals, appointed
directly or indirectly by the parties, and vested with the power to adjudicate
the dispute in place of state courts by rendering a decision having effects
analogous to those of a judgment.” (105)
“a device whereby the settlement of a question, which is of interest for two or
more persons, is entrusted to one or more other persons – the arbitrator or
arbitrators – who derive their powers from a private agreement, not from the
authorities of a State, and who are to proceed and decide the case on the
basis of such an agreement.” (106)
“voluntary submission by parties to a special kind of private litigation which is
accepted, tolerated and sanctioned by public international law and the laws
of most civilized jurisdictions.” (107)
“the voluntary submission by the parties of a dispute for decision by
recognised and regular procedure other than litigation.” (108)
“where the parties, injuring and injured, submit all matters in dispute,
concerning any personal chattels or personal wrongs, to the judgment of two or
more arbitrators who are to decide the controversy. … And thereby the
question is as fully determined, and the right transferred or settled, as it could
have been by the agreement of the parties of the judgment of a court of
justice.” (109)
“a process by which parties agree to the binding resolution of their disputes
by adjudicators, known as arbitrators, who are selected by the parties, either
directly or indirectly via a mechanism chosen by the parties.” (110)
“a dispute resolution method in which the disputing parties empower an
arbitral tribunal to adjudicate a dispute in a final and binding manner.” (111)
“arbitration must have three basic elements: an agreement for arbitration
between the parties … reference of a dispute covered by that agreement to a
third party, who must be an individual other than a national court judge acting
as such; and the result must be an adjudication, which is binding upon the
parties in the same manner as a court judgment.” (112)

National courts have adopted similar definitions:

“An agreement to arbitrate before a specified tribunal is, in effect, a
specialized kind of forum-selection clause that posits not only the situs of suit
but also the procedure to be used in resolving the dispute.” (113)

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 “[Arbitration is a] contractual method of resolving disputes. By their contract
the parties agree to entrust the differences between them to the decision of
an arbitrator or panel of arbitrators, to the exclusion of the Courts, and they
bind themselves to accept that decision, once made, whether or not they think
it right.” (114)
“Consistent with the traditional notion of private arbitration, one may define
[the arbitration clause] as an agreement according to which two or more
specific or determinable parties agree in a binding way to submit one or
several existing or defined future disputes to an arbitral tribunal, to the
exclusion of the original competence of state courts and subject to a (directly
or indirectly) determinable legal system.” (115)
“the two criteria of the arbitration [are] … the existence of a dispute and the
submission of the party by agreement to an arbitrator whose powers are
specified.” (116)
“a non-state jurisdiction regarding private law matters based upon the will of
the parties.” (117)
“arbitration concerns a decision rendered – by the parties’ choice and
intention – by [experts] who take the place of the courts within the exact limits
established by the law ….” (118)
Countless other definitions of “arbitration” have been suggested. (119)
In many instances, individual examples of these, and other, definitions are incomplete or
(partially) mistaken. (120) Nonetheless, as discussed in greater detail below, these
formulations cluster around, and capture, a common core definition which applies
equally under international arbitration conventions and developed national arbitration
legislation: that is, as a matter of the New York Convention’s (and Inter-American
Convention’s) uniform international standards and national arbitration legislation’s
provisions, arbitration is – and only is – a process by which parties agree to submit a
dispute to a non-governmental decision-maker, chosen by or for them, to render a
binding decision finally resolving that dispute between the parties in accordance with
adjudicatory procedures affording the parties an opportunity to be heard.

[b] Elements of Definition of “Arbitration”

As summarized above, the definition of arbitration contains a number of elements, all of
which are essential to characterizing a particular dispute resolution process as
“arbitration.” In particular, arbitration requires (i) a consensual agreement (ii) to submit
disputes to (iii) a non-governmental decision-maker, chosen by or for the parties, to (iv)
render a binding decision finally resolving that dispute, (v) in accordance with
adjudicatory procedures affording the parties an opportunity to be heard. Each of the
various elements of this definition of arbitration is important and warrants elaboration.

[i] Consensual Agreement

It is elementary that “arbitration” is a consensual process that requires the agreement of
the parties. As discussed in detail elsewhere, Article II of the New York Convention
applies only to an “agreement … under which the parties undertake to submit to
arbitration,” (121) while Article 8 of the UNCITRAL Model Law applies only where there is
“an agreement by the parties to submit to arbitration all or certain disputes.” (122) Other
national arbitration legislation is to the same effect. (123)
Similarly, as also discussed elsewhere, national courts uniformly hold that “arbitration is
a creature that owes its existence to the will of the parties alone,” (124) that “[a]rbitration
is strictly ‘a matter of consent’ … and thus ‘is a way to resolve those disputes – but only
those disputes – that the parties have agreed to submit to arbitration,’” (125) and that,
“unlike court proceedings, arbitration proceedings are consensual.” (126) There is no
contrary authority from either national courts or elsewhere. (127)
Dispute resolution processes mandatorily required by statute or other governmental
requirements are not arbitration within the meaning of the New York (or Inter-American)
Convention or national arbitration statutes in most jurisdictions. These processes can
resemble arbitration in many respects (e.g., the parties may choose the decision-maker;
the procedures may be identical to those in arbitration; the award may be binding), but a
non-consensual dispute resolution process is simply not “arbitration” for purposes of the

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 Convention or national arbitration legislation.
[ii] Resolution of “Disputes”
A distinguishing characteristic of arbitration is the resolution of “disputes” or
“disagreements.” (128) Thus, Article II(1) of the New York Convention applies to an
agreement to arbitrate “differences,” (129) while Article 7(1) of the UNCITRAL Model Law
and most other national arbitration legislation applies to agreements to arbitrate
“disputes” or “controversies.” (130) Thus, arbitration does not apply to the resolution of
other types of issues, such as the negotiation or formulation of contractual terms, the
formation of commercial ventures, or the expression of abstract legal or other opinions
outside the context of a “dispute.” (131) Arbitration is a form of dispute resolution, not a
debating society, board of directors, or academic forum. (132)

[iii] Non-Governmental Decision-Maker Selected by or for Parties

Another fundamental attribute of “arbitration” is that it involves the submission of
disputes to a non-governmental decision-maker selected by or for the parties. (133) Both
national courts and commentary uniformly hold that arbitration entails a non-
governmental or private decision-maker and not a court or government agency. (134) As a
decision of the German Bundesgerichtshof put it: “[Arbitral proceedings are] a non-state
jurisdiction regarding private law matters based upon the will of the parties.” (135)
Rather, a defining characteristic of arbitration is the selection of particular “arbitrators”
to resolve a particular dispute, or defined category of disputes; typically, arbitrators are
chosen by the parties themselves or, in the absence of agreement by the parties, by an
arbitral institution chosen by the parties. (136) In contrast, as discussed below,
“arbitration” does not extend to forum selection agreements, where parties agree to
submit their disputes to a specified national court. (137)
[iv] Final and Binding Decision
A third defining characteristic of arbitration is that it produces a binding award that
decides the parties’ dispute in a final manner and is subject only to limited grounds for
challenge in national courts. (138) Arbitration does not produce a non-binding, advisory
recommendation, which the parties are free to accept or reject; it also is not merely a
process of negotiation, during which the parties are free to agree (or not) to settle their
disputes. (139) Nor is arbitration a process that leaves parties free to initiate or continue
with litigation in national courts. (140)
Instead, arbitration results in a final and binding decision by a third party decision-
maker – the arbitrator – that can be coercively enforced against the unsuccessful party or
its assets. (141) As one court explained:

“[m]ediation is a process in which a neutral facilitates settlement discussions

between parties and the neutral has no authority to make a decision or
impose a settlement on the parties. In contrast, arbitration is a form of
adjudication in which an arbitrator or panel of arbitrators renders a decision.”
(142)

Indeed, as discussed elsewhere, international arbitral awards are generally materially

more binding and enforceable than national court judgments. (143)
In principle, the resulting arbitral award is binding only on the parties. This inter partes
limitation may (exceptionally) be removed or modified by domestic law instruments,
notably in intellectual property disputes. (144) Consistent with the consensual character
of arbitration, however, arbitral awards are ordinarily, and virtually always, only binding
on the parties to the arbitration.
[v] Use of Adjudicatory Procedures
Finally, a defining characteristic of “arbitration” is the use of impartial adjudicative
procedures which afford each party the opportunity to present its case to the tribunal. As
discussed in greater detail below, forms of dispute resolution that do not provide parties
the opportunity to present their views (e.g., expert determination or valuation, where the
decision-maker is free to proceed with an independent investigation) do not generally
constitute arbitration. (145) Similarly, contractual provisions that give one party the right
to unilaterally decide a particular issue do not constitute arbitration. (146)
Rather, an essential characteristic of arbitration is its adjudicatory character, in which an

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 objective and independent tribunal affords the parties opportunities to present their
respective cases and then makes a decision based on those submissions. As one court
described:
“the fundamental difference between [arbitration and appraisals] lies in the
procedure to be followed. … Arbitrators, like a judicial tribunal, must give
notice to the parties of the time and place of the hearing of the controversy,
and must listen to and decide upon the evidence offered by the parties. … In
the case of a simple appraisal of values or the amount of a loss, the
appraisers, if they wish, may hear what others have to say on the question they
are to determine; but, unless the reference so provides they are not bound to
take testimony and may decide from their own knowledge or opinion.” (147)
As discussed below, other authorities confirm the essential adjudicatory character of
arbitration. (148)
[2] What Isn’t Arbitration?
The nuances of the foregoing definition of arbitration – and hence, of the term
“arbitration agreement” – are best appreciated when comparing arbitration to related,
but distinct, forms of dispute resolution. This includes litigation, expert determination,
mediation or conciliation and other forms of alternative dispute resolution.
[a] Arbitration Versus Litigation
It is elementary that arbitration is consensual. As discussed elsewhere, that is the
uniform holding of national courts, commentary and other authorities. (149) Simply put,
absent an “agreement” to arbitrate, there is, by definition, obviously no “arbitration
agreement.” Thus, although it is tautological, consensual arbitration is most obviously not
national court litigation pursuant to default or mandatory jurisdictional rules prescribed
by domestic law.
Of course, litigation in national courts may also be conducted pursuant to consensual
agreements, typically referred to as forum selection clauses (also variously termed
prorogation, jurisdiction or choice-of-court agreements). (150) Indeed, forum selection
agreements are occasionally confused with arbitration clauses. (151) For example, one
lower court opined that “[a]n arbitration clause is just a particular kind of forum-
selection clause … [w]hat holds for arbitration therefore must hold for other forum-
selection clauses.” (152)
Instances of confusion between forum selection and arbitration agreements are
surprising, because it is very clear that a forum selection clause is not an arbitration
agreement, and vice versa. It is fundamental to distinguish between arbitration
agreements and forum selection agreements. Needless to say, this is because a forum
selection clause provides for resolution of disputes by litigation in a national court, not
by arbitration before a non-governmental arbitrator selected by or for the parties. Most
authorities recognize the distinction between forum selection and arbitration
agreements, which is in any event beyond controversy. (153)
For the most part, it is not difficult to differentiate forum selection clauses from
arbitration clauses. The non-governmental identity of the decision-maker is a critical,
distinguishing feature of “arbitration” agreements. If disputes are referred to “arbitrators”
– persons without government office, who are selected by or for the parties, to resolve a
particular dispute – then the clause may be an “arbitration agreement.” An arbitrator is
not a national court judge (nor is the reverse true): “arbitration is not in the job
description of a federal judge.” (154)
The foregoing conclusion remains true even if an arbitration clause is titled “forum
selection” or “choice of court” clause. The decisive factor, in this circumstance, is not the
label, but the reality of who the decision-maker is. (155) If the decision-maker is a private
party, selected by the parties, to conduct an adjudicative process in order finally to
resolve a dispute, the parties have agreed to arbitrate, even if their agreement is labeled
a “forum selection” clause.
Conversely, even if a clause is titled “arbitration,” but refers disputes to a specified
national court for resolution, then the parties have entered into a forum selection
agreement, not an arbitration agreement. (156) Again, the decisive factor is the substance
of what the parties have agreed to with regard to the decision-maker, not the label that
they used. Of course, where the parties have not clearly identified who is responsible for

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 dispute resolution, then the label that they have used will assume greater, and perhaps
decisive, importance: if the parties agree to “arbitration” of their disputes before
unnamed persons in a particular place, then it would contradict their agreement to refer
their disputes to the local courts in that place.
A further distinguishing characteristic of arbitration is that an arbitral tribunal is
ordinarily selected, usually by the parties or their contractually-specified delegate, for a
specific dispute or category of disputes. (157) In many cases, parties either will jointly
agree upon a sole arbitrator, (158) will jointly select the members of a multi-person
tribunal, (159) or will have previously agreed upon an appointing authority which will
fulfill this function for them. (160) The arbitrator(s) thus selected will have a particular
mandate, limited to the disputes referred to him or her. (161)
In contrast, a forum selection or choice-of-court clause cannot (and does not) select a
particular national court judge for a particular matter. Rather, the judge in any particular
case is a member of a standing judiciary, available to hear all disputes brought to it, who
is assigned to the parties’ dispute without regard to their choice. (162)
As noted above, there are significant legal consequences that result from characterizing
an agreement as a forum selection clause, rather than an arbitration agreement. (163) The
New York Convention (and other international arbitration conventions) and national
arbitration statutes apply only to “arbitration agreements,” and do not apply to forum
selection clauses. (164) Conversely, international conventions and national legislation
dealing with forum selection clauses do not apply to arbitration agreements. (165) That is
well-illustrated by the Hague Conference on Private International Law’s Convention on
Choice of Court Agreements, (166) which applies to forum selection clauses, and not to
arbitration agreements, and by EU Regulation 44/2001 and the Recast Regulation, which
are the same. (167)

[b] Arbitration Versus Expert Determination or Valuation

Just as arbitration is not litigation, so too arbitration is not expert determination or
valuation. Commercial contracts not infrequently contain provisions for the resolution of
certain categories of disputes by an expert, an accountant, an engineer, or other
specialized non-governmental person selected (directly or indirectly) by the parties and
authorized to render a binding decision on an issue. (168) Such provisions can involve
accounting (or other financial) calculations by an accountant, quality determinations by
an industry representative, oil and gas reserve estimates by an expert, engineering or
construction judgments by an architect or engineer, or legal assessments by a lawyer.
(169) The question not infrequently arises whether such provisions establishing a non-
litigation dispute resolution mechanism for particular technical issues by an expert
decision-maker are “arbitration agreements” – subject to international arbitration
conventions and national arbitration legislation – or something else.
In many national legal systems, an important distinction is drawn between “arbitration”
and binding “expert determination,” “appraisal,” or “valuation.” (170) The latter
categories are variously referred to as “expertise-arbitrage” (French), (171)
“Schiedsgutachten” (German) (172) and “bindend advies” (Dutch); (173) common law
decisions draw the same distinction. (174) As discussed above, the ICC and some other
arbitral institutions have promulgated separate sets of rules applicable to these sorts of
expert determinations. (175)
The processes of expert determination or valuation are very similar in many respects to
arbitration in that a non-governmental decision-maker consensually selected by the
parties renders a binding decision outside of the context of national court litigation. (176)
In the words of one representative national court decision:
“Expert Determination is a process where an independent Expert decides an
issue or issues between the parties. … Expert Determination provides an
informal, speedy and effective way of resolving disputes, particularly disputes
which are of a specific technical character or specialised kind.” (177)
Nonetheless, expert determination and valuation are different from arbitration in several
significant respects, which are summarized below. These include (i) the character of the
issues submitted for decision (with arbitration generally involving broad “disputes,”
presenting legal issues and questions of liability, and expert determination and
valuation involving narrower, factual or technical issues), and (ii) the nature of the
procedures used (with arbitration involving neutral adjudicatory procedures affording

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 the parties an opportunity to present their cases and expert determination and valuation
not necessarily providing these procedures and instead permitting experts to rely more
extensively on their own expertise and investigations).
As in other contexts, it is clear that the label that the parties attach to a dispute
resolution provision is not decisive for purposes of determining its character, although it
may be relevant for a court determining whether a contract requires parties to arbitrate
or to participate in an expert determination. (178) As one English judicial decision
explains:
“The way in which the dispute resolution process is described or labelled by
the parties in their agreement is not conclusive as to the true character of that
process. Nevertheless the language used by the parties may well provide an
important indication of the nature of the process that they intend.” (179)
First, expert determinations and valuations are sometimes distinguished from arbitration
on the grounds that they ordinarily do not involve open-ended decisions on disputed
factual and legal issues, as is usually the case in arbitration, but rather application of
specified technical, accounting, or similar criteria to a relatively narrow question. A
number of courts and commentators have relied on this difference as the principal
distinction between arbitration and expert determination. (180) The rationale behind
decisions adopting this distinction is that the appointed valuation expert “simply
rendered a singular determination – a finding of fact by which the parties had agreed to
be bound. … They did not exercise the discretionary judgment that is the hallmark of the
arbitrator’s function.” (181) Other decisions have distinguished between the
determination of “facts” in an appraisal and the resolution of issues of “law” or “disputes”
in an arbitration. (182)
Thus, German courts have reasoned that the characteristic element of an arbitration
agreement is the transfer of competence to render a final decision in a dispute, which
normally belongs to national courts, to an arbitral tribunal – as opposed to an expert
determination of specific factual issues. (183) Likewise, according to the Austrian
Oberster Gerichtshof, “[t]he function of the arbitrator is actually a judicial one, to decide
a legal dispute in lieu of an ordinary court.” (184)
Second, expert determinations and valuations have also been distinguished from
arbitration on the basis that these forms of dispute resolution do not characteristically
involve the same adjudicative procedures and opportunity for the parties to be heard as
exists in arbitration (e.g., expert determinations typically involve minimal written
submissions, no oral hearing or witness testimony, and instead rely more extensively on
the expert’s personal expertise and investigations). (185) Thus, “[a]rbitration presupposes
a quasi-judicial hearing with witnesses, oaths, and the taking of testimony,” (186) and “[i]t
is a characteristic of arbitration that the parties should have a proper opportunity of
presenting their case.” (187) In general, arbitrators are required to decide the parties’
dispute based on the evidence and arguments presented to them, without independently
investigating the facts. (188)
In contrast:
“‘an [a]ppraisal … is a proceeding … without formal taking of evidence, without
oaths, procedural safeguards, discipline or other court-like restraints.’ … [The]
process does not lend itself to the formal introduction of evidence by the
parties or the opportunity to submit rebuttal documents or proofs.” (189)
It is also often said that experts, appraisers and valuers may rely on their own experience
and knowledge, as well as or instead of the materials presented by the parties during the
expert determination. (190)
As one court summarized the differences in procedures in arbitration and expert
determinations and valuations:

“[S]ince arbitrators are entrusted with the broader obligation to determine

liability as well as the amount of the award, it is reasonable to require
broader procedural safeguards in arbitration. The subject-matter
responsibility of appraiser being less, the procedural safeguards attending an
appraisal may be lower.” (191)
These two distinguishing features of arbitration and expert determination are to an

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 extent over-generalizations. Expert determinations can, and sometimes do, involve
interpretation of contractual standards in the context of relatively broad disputes, much
like many arbitral awards, (192) while some arbitral awards can involve comparatively
narrow technical, accounting, or other issues that are much like many expert
determinations. (193)
Likewise, expert determinations can be conducted, as a procedural matter, much like
arbitrations (with witness testimony, written and oral submissions, a reasoned decision,
etc.), while some arbitrations can be conducted with little similarity to judicial
proceedings (e.g., “documents only” arbitrations). (194) For example, some commodities
or maritime arbitrations can be almost identical in their procedural conduct to some
expert determinations, yet are considered as an arbitration that produces an arbitral
award. (195)
Despite this, there are generally-applicable and important differences in the procedures
used, as well as in the nature of the issues decided, in expert determinations, on the one
hand, and arbitration, on the other. Of primary importance, a defining and distinguishing
characteristic of arbitration is its mandatory use of adjudicatory procedures to resolve
the disputes and claims presented by the parties. (196) As one U.S. court put it:
“a true arbitration agreement [requires]: (1) a third party decision maker; (2)
mechanisms for ensuring neutrality with respect to the rendering of the
decision; (3) a decision-maker who is chosen by the parties; (4) an opportunity
for both parties to be heard; and (5) a binding decision.” (197)
The parties’ broad autonomy to establish procedures tailored and appropriate to their
needs is a key element of the arbitral process, (198) but there is a core minimum
requirement for adjudicative procedures which are required to constitute “arbitration”
within the meaning of the FAA.
English courts have taken a similar approach, adopting relatively expansive definitions of
arbitration (typically refusing to accord decisive or even material weight to the label
used by the parties), while placing principal emphasis on the nature of the dispute
resolution procedures contemplated by the parties’ agreement. One decision, dealing
with the characterization of a “Contract Recognition Board” charged with resolving
contractual disputes arising from professional automobile racing arrangements,
concluded that the clause constituted an arbitration agreement principally because of
the “Board’s judicial responsibilities.” (199) Another English case held that a contractual
clause, providing that any disputes under an insurance policy would be referred to “a
Queen’s Counsel of the English Bar,” was an arbitration agreement. (200)
A similar approach has been adopted by New Zealand courts. In one case, the court held
that arbitrator immunity would not apply to individuals responsible for making
valuations, based upon their own expertise and investigations. (201) In a well-reasoned
opinion, the court concluded that an arbitration was characterized by “judicial”
procedures, which could be envisaged in a continuum:
“At one end of the scale is the arbitrator who sits to hear evidence and
submissions and then adjudicates in the same way as a Judge. At the other end
is the arbitrator [sic] who is appointed to use his own expertise, skill and care
to investigate a particular matter and come to a decision on it without
evidence, submissions or any type of hearing.” (202)

Canadian, Australian, Singaporean and Hong Kong courts have similarly focused in this
context on the extent to which a proceeding involves an adjudicative function, of hearing
the parties’ submissions and evidence and rendering an impartial decision. (203) A
Canadian Supreme Court decision explains the importance of adjudicative procedures to
the definition of arbitration as follows:
“[T]he similarity that must exist between arbitration and the judicial process.
The greater the similarity, the greater the likelihood that reference to a third
party will be characterized as arbitration. The facts that the parties have the
right to be heard, to argue, to present testimonial or documentary evidence,
that lawyers are present at the hearing and that the third party delivers an
arbitration award with reasons establish a closer likeness to the adversarial
process than the expert opinion and tend to establish that the parties meant
to submit to arbitration.” (204)

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 Decisions in civil law jurisdictions have also cited the importance of the decision-maker
applying adjudicatory procedures to the definition of an arbitration agreement. In
particular, the French Cour de Cassation, (205) and other French courts, (206) have
emphasized that the arbitrator’s “judicial” responsibilities are essential to the arbitral
function. Similarly, in an early decision, the German Bundesgerichtshof held that an
arbitrator exercises a judicial function and must conform to a “quasi-judicial procedure”
in order to “live up to [his or her] function as a court.” (207) Consistent with this, the
Bundesgerichtshof more recently held that the impartiality and independence of a body
established by the internal rules of an association was essential for characterization as
an arbitral tribunal. (208)
Swiss courts draw a similar distinction, emphasizing that, in principle, the arbitrator’s
task is to adjudicate a dispute, whereas an expert determination requires the expert to
establish facts. (209) The distinction is drawn taking into account the substance of the
dispute resolution mechanism and the way in which the expert or arbitrator has
understood and executed his mission. An informal procedure without an exchange of
factual allegations and requests for relief, as well as the lack of any authority to award
legal fees, point towards an expert determination under Swiss law. (210)
Given these decisions, care should be taken in drafting clauses providing for the “expert
determination” of particular matters. International arbitration conventions and national
arbitration legislation will not ordinarily apply to such procedures, and the resulting
decisions, and if parties desire a different result then they should clearly denominate the
process as “arbitration” and allow for procedures that permit adjudicative opportunities
to be heard prior to a decision. (211) Failure to do so risks having a dispute resolution
process characterized as “expert determination,” rather than “arbitration,” and therefore
as falling outside of statutorily-mandated provisions for judicial assistance to, non-
interference in, and enforcement of the arbitral process, and statutory (212) or other
provisions for arbitrator immunity. (213) (Many legal systems will nonetheless give effect
to agreements for expert determination, (214) but typically pursuant to a less favorable
and less reliable legal regime.)
Conversely, if the parties wish to avoid the legislative framework applicable to
arbitration (for whatever reason), then they should denominate the dispute resolution
process as “expert determination,” and not arbitration, and should grant the expert the
power to render a decision without using quasi-judicial procedures. If parties desire an
“expert determination” procedure, they should also be careful to specify clearly what the
intended consequences of the expert’s decision are; in particular, they should specify
that the decision is (or is not) final and binding on the parties. (215)
Despite these conclusions, many national courts have recently adopted relatively
expansive conceptions of arbitration, increasingly extending the term to dispute
resolution mechanisms that are or closely resemble classic expert determinations,
valuations, or appraisals. The United States is a representative example of this trend.
Prior to passage of the FAA, the U.S. Supreme Court held that expert determination was
not an arbitration. (216) Under the FAA, however, a number of U.S. courts have concluded
that a wide range of alternative dispute resolution mechanisms constitute “arbitration”
for purposes of the Act, including a variety of mechanisms providing for expert
determination. (217) Even under the FAA, however, a few U.S. courts have held that
particular forms of valuation or expert appraisals will not constitute arbitration. (218)
Where state law is applicable, commentators have observed that U.S. courts are divided,
with roughly half of all U.S. jurisdictions continuing to distinguish between arbitration
and expert determinations, and the remaining half rejecting the distinction. (219)
Even where expert determination is not regarded as arbitration, U.S. courts have
sometimes applied local arbitration legislation (apparently by analogy) to what have
been categorized as expert determinations. (220) (In some cases, U.S. state law provides
expressly for the enforcement of appraisals on the same basis as arbitral awards. (221) )
Similarly, a number of U.S. courts have held that litigation should be stayed pending an
appraisal or expert determination. (222)
Likewise, if somewhat less expansively, decisions in most other developed jurisdictions
have also adopted liberal approaches to the definition of arbitration agreements in the
context of provisions which arguably constitute agreements for expert determination.
Thus, both common law (223) and civil law (224) courts have held that a variety of
alternative dispute resolution provisions not fitting comfortably into classic notions of

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 arbitration nonetheless constitute arbitration agreements that are subject to the
protections of national arbitration legislation.
The trend towards expensive definitions of “arbitration” in the context of expert
determination is well-considered, but must be applied with caution. It is appropriate to
give broad application to the pro-enforcement provisions and policies of the New York
Convention and national arbitration legislation.
On the other hand, treating provisions for expert determination as arbitration not only
enhances the enforceability of such provisions, but also subjects them to the
requirements applicable to the arbitral process (including with respect to the
constitution of the arbitral tribunal and other characteristics of the arbitral process, the
conduct of the arbitral process and the form and character of the arbitral award). (225)
Imposing these requirements on an expert determination process, where the parties did
not desire or select such requirements, is inconsistent with both principles of party
autonomy and the purposes of the Convention and national arbitration legislation. The
better approach, where national law permits, is to apply selected provisions of national
arbitration legislation (regarding the validity and enforcement of arbitration agreements)
to agreements for expert determination by analogy, without extending the entire legal
framework for international arbitration to expert determinations.

[c] Arbitration Versus Mediation or Conciliation (226)

Arbitration agreements differ fundamentally from agreements for “conciliation,”
“mediation,” early neutral evaluation and the like. In contrast to arbitration, which
produces a binding decision, mediation and conciliation do not provide for a binding
decision or award that is imposed on the parties; rather, they provide for a process of
discussions which at most results in the non-binding expression of opinion(s) that may (or
may not) assist the parties in reaching a consensual settlement. (227)
The mediator or conciliator is not empowered to decide or resolve issues, but merely to
discuss and negotiate with the parties in an effort to persuade them to reach a
consensual resolution of their dispute. (228) As one early authority put it, “[m]ediation is
an advisory, arbitration a judicial, function. Mediation recommends, arbitration decides.”
(229) This is a fundamentally different outcome from arbitration, whose basic objective is
to produce a binding award that not only decides the parties’ dispute in a final manner,
but that is subject to only limited grounds for challenge in national courts. (230)
In some jurisdictions, separate legislation has been adopted governing mediation,
conciliation and related form of alternative dispute resolution. That includes the
UNCITRAL Model Law on International Commercial Conciliation (231) and an EU mediation
directive, which has been adopted in most EU Member States. (232) Where such statutory
regimes exist, the different legal frameworks that govern mediation or conciliation, on
the one hand, and arbitration, on the other hand, will be apparent. Even in other
jurisdictions, however, mediation and conciliation will be subject to a different legal
regime than arbitration. (233)
A number of leading arbitral institutions have adopted specialized
conciliation/mediation procedures. One of the forerunners in this regard was ICSID,
where the original ICSID Convention contained a separate chapter dealing specifically
with conciliation. (234) Many leading arbitral institutions have also adopted rules of
conciliation. (235) These include the ICC, (236) AAA and ICDR, (237) WIPO (238) and CPR.
(239) Obviously, where parties agree to dispute resolution in accordance with these
mediation or conciliation rules, they will not have entered into an arbitration agreement,
but rather an agreement to mediate or conciliate.
In general, few difficulties should arise in distinguishing between “arbitration”
agreements, on the one hand, and “mediation” or “conciliation” agreements, on the other.
Although, as discussed above, labels are not decisive, (240) reference to “arbitration” will
ordinarily be sufficient to exclude the possibility that “mediation” or “conciliation” is
intended, while the converse will be equally true. (241) In rare cases, parties may refer to
a procedure (e.g., “arbitration”) but then specify an inconsistent outcome, such as a non-
binding decision (e.g., “the arbitrators may recommend”). (242) In these instances,
although conclusions necessarily turn on appraisals of the parties’ intentions in
particular cases, the focus should be on the substantive outcome that the parties have
attempted to provide for, rather than on the label that they have used.
U.S. courts have generally held that when parties agree to a provision requiring only a

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 non-binding mediation or conciliation process, there is no agreement to arbitrate. (243)
Thus, “one feature that must necessarily appertain to a process to render it an arbitration
is that the third party’s decision will settle the dispute,” (244) and “[m]ediation is not the
same as arbitration, due to its non-binding nature.” (245) The same is true where the
parties agree only to the provision of a non-binding recommendation, (246) or where
parties retained the right to litigate their dispute. (247) (As discussed below, courts have
generally presumed, in cases of doubt, that parties intended to agree upon binding
arbitration, rather than a non-binding recommendation mistakenly called arbitration,
but where the parties clearly agree upon the latter dispute resolution mechanism, it will
be given effect. (248) )
Decisions in other jurisdictions are similar to the weight of U.S. authority in requiring that
arbitration involve a process that produces a binding result. French, (249) English, (250)
Hong Kong (251) and German (252) courts have held that an agreement that permits
access to national courts following a non-binding decision does not constitute an
arbitration agreement, but rather is a conciliation or mediation clause. Thus, a French
court held that, because the parties had agreed that a decision issued in proceedings
before the Arbitration and Mediation Center of the World Intellectual Property
Organization (“WIPO”) lacked binding res judicata effect, it was not an arbitral award. (253)
The court reasoned that while the WIPO administrative proceeding shared certain
attributes with a classical arbitration – such as independence and impartiality of the
administrative panel, equal treatment of the parties and evaluation of the evidence –
the decision could not be an arbitral award because it did not bind the parties and
because the parties’ agreement allowed them to refer their dispute to a French court
before, during and after the proceedings. (254) Other national courts have reached
similar results in addressing comparable provisions. (255)
Although defining arbitration as requiring a binding decision, and therefore as excluding
mediation and conciliation, some U.S. courts have suggested that the FAA will
nonetheless be applied (properly analyzed, by analogy) even to a non-binding mediation
or conciliation agreement. Although the reasoning of these decisions is not easy to follow,
they appear to hold that a mediation agreement is similar enough to an agreement to
arbitrate to warrant application of the same legal regime for enforcement. (256) As one
court put it, “[f]ederal policy favors arbitration in a broad sense, and mediation surely
falls under the preference for non-judicial resolution.” (257) Other U.S. decisions are even
more difficult to follow, incorrectly suggesting that non-binding mediation is really a form
of arbitration; (258) for the reasons discussed previously, this reasoning is wrong.
Similarly, the U.S. Supreme Court has correctly observed that “[o]f course, submitting to
jurisdiction and agreeing to be bound are two different things,” but then incorrectly
proffered as an example an “agree[ment] to compulsory nonbinding arbitration.” (259)
That reasoning, which was unnecessary to the Court’s conclusion, on a largely unrelated
topic, is difficult to square with the overwhelming weight of authority regarding the
meaning of arbitration and an agreement to arbitrate, which require a binding decision
resolving the parties’ dispute; the Court’s reference to “non-binding arbitration” is a
classic oxymoron. Although it is possible to agree in a binding manner to submit to non-
binding dispute resolution, this is not what is intended or accomplished by submission of
disputes to “arbitration” or to (other forms of adjudication); rather, dispute resolution
agreements of this character constitute agreements to be bound by the arbitrator’s (or
other adjudicator’s) decision. (260)
Finally, although national arbitration legislation generally does not apply to mediation,
conciliation, or similar ADR agreements, courts have not infrequently given effect to such
agreements by applying general rules of contract law. (261) Nonetheless, the resulting
enforcement mechanisms are generally materially less effective than most contemporary
national arbitration statutes, and significant enforceability issues arise under many
national laws with regard to at least some types of agreements for non-binding dispute
resolution. (262)
Recently, efforts have been made to make cross-border settlement agreements arrived
at through mediation more enforceable. In August 2019, the United Nations Convention on
International Settlement Agreements Resulting from Mediation – also known as the
Singapore Convention on Mediation (or Singapore Mediation Convention) (263) – was
opened for signature. (264) The Singapore Convention streamlines enforcement of such
settlement agreements in different jurisdictions, in a manner broadly similar to the New
York Convention’s treatment of arbitration agreements and awards. The Convention came

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 into force on 12 September 2020, following the Convention’s ratification by Fiji, Singapore
and Qatar. (265)
[d] “Quality Arbitration”
“Quality arbitrations” have historically been used in some industries (e.g., commodities)
to resolve disputes concerning the quality of goods which are delivered. These disputes
frequently turn entirely on technical issues, and are resolved by industry experts in a
procedural manner that is highly informal and that bears little resemblance to many
“normal” contemporary commercial and investment arbitrations. (266) There are
typically no written submissions, witness testimony, hearings, or argument, and often no
reasoned award; in many respects, the arbitrator’s decision is more in the nature of a
sports referee’s “call” than a judicial decision. (267)
Given these procedural characteristics of quality “arbitration,” it is uncertain whether
such proceedings can properly be considered “arbitration.” The apparent view of most
national courts (268) and other authorities, (269) influenced in part by terminology and
historical practice, (270) is that quality arbitrations are a form of “arbitration,”
notwithstanding the use of procedures that are often adjudicative only in the loosest
sense. Indeed, an early English judicial decision remarked that “one of the commonest
types of arbitration contemplated by the arbitration agreement is a quality arbitration.”
(271) There is contrary authority, but it is unusual. (272)
This conclusion must be seen in the context of the parties’ autonomy to agree upon the
arbitral procedures and, to a lesser extent, the arbitrators’ discretion with regard to
procedural matters in the absence of such agreement. (273) One inevitable consequence
of this autonomy is that the parties may agree upon highly summary procedures, waiving
many aspects of “normal” judicial and arbitral processes. (274) Where the parties do so,
while nonetheless retaining the basic right to present their respective cases according to
neutral, albeit informal and summary, procedures to an impartial tribunal, the essence of
the definition of arbitration can be considered satisfied. Where the parties reach such an
agreement consistent with historic and contemporary practice in a particular
commercial setting, the arguments for applying international arbitration conventions and
national arbitration legislation are particularly difficult to resist. (275)
[e] “Interest Arbitration”
Another form of alternative dispute resolution is so-called “interest arbitration,”
sometimes used in labor or employment settings, where the “arbitrator” has authority to
devise new contractual terms governing the parties’ future conduct. (276) This raises
issues similar to questions whether proceedings for the adaptation of contracts may
constitute arbitration. (277) The better view is that, if the other definitional requirements
of arbitration are satisfied, a tribunal may exercise the substantive power under
applicable law to adapt an existing contract or structure a new or revised contract
without converting the process into something other than arbitration.
[f] Arbitration Following Other Dispute Resolution Processes
Some agreements contain so-called “multi-tier” dispute resolution mechanisms, which
provide for arbitration only after other contractually-prescribed procedures have been
exhausted. These provisions are also referred to as “escalation clauses,” “step clauses,” or
“MDR clauses.” (278)
These provisions can include “cooling-off” or “waiting” periods; negotiations between
corporate representatives or officers; conciliation, mediation, or mini-trials; or referral to
an expert or other third party for a non-binding opinion. In some instances, parties agree
to attempt first to resolve their disputes by negotiation (sometimes with escalation to
more senior corporate representatives), followed by mediation or conciliation, with
arbitration being permitted only after these non-binding means of dispute resolution
have been attempted for prescribed periods of time. (279) These multi-tier approaches to
dispute resolution and prevention have been particularly popular in recent years. (280)
As discussed below, noncompliance with multi-tiered dispute resolution clauses of this
sort can raise jurisdictional and procedural issues (including, for example, whether a
party may initiate an arbitration prior to completing or fully completing the multi-tier
dispute resolution process). (281) In addition, questions have also arisen as to whether a
multi-tiered dispute resolution agreement constitutes an “arbitration agreement” for
purposes of international arbitration conventions or national legislation. (282) In

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 particular, disputes have arisen as to whether the New York Convention and national
arbitration legislation are applicable to enforce a multi-tier dispute resolution
mechanism when parties attempt to commence litigation prior to initiation of an
arbitration (e.g., during a cooling off period or mediation).
The proper answer is that the Convention and national arbitration regimes apply to
multi-tier dispute resolution provisions, even where arbitration has not yet been
initiated, provided that the mechanism will ultimately require arbitration. This is
consistent with authority in virtually all jurisdictions. Even where an agreement provides
for arbitration only after a lengthy process of other dispute resolution mechanisms, it still
remains an arbitration agreement. (283) Arbitration delayed is not, so to speak, not
arbitration.
Thus, in Channel Tunnel Group Ltd v. Balfour Beatty Construction Ltd, the House of Lords
held, “without undue difficulty,” that a clause providing for referral of disputes to three
independent experts, followed by an appeal to an arbitral tribunal, constituted an
arbitration agreement for purposes of English law. (284) Decisions in other national courts
have routinely treated clauses involving less elaborate pre-arbitration procedures as
valid and enforceable “arbitration agreements.” (285) A Hong Kong court explained this
rule as follows:
“An agreement that requires that the parties submit their disputes ultimately
to arbitration, although it may also require the parties in the first instance to
follow a procedure – such as, attempting an amicable settlement – is, to my
eyes, an arbitration agreement. … It matters not, it seems to me, that the
parties must, firstly, take some other step before [referring disputes to
arbitration].” (286)
In a few jurisdictions, however, courts have concluded that multi-tiered dispute
resolution agreements are not enforceable in the same fashion as “arbitration
agreements” prior to the initiation of arbitration. For example, a U.S. appellate court
held that until the contractual requirements for mediation and subsequent notice of
arbitration are fulfilled by the parties, an arbitration clause has not been triggered and
litigation may proceed in the interim. (287)
This result is badly misconceived: the parties’ agreement to arbitrate should be
regarded, absent express contrary agreement, as excluding national court litigation
during the period when any escalation procedures or conditions precedent are being
complied with. (288) This is no different from the position when a party commences
litigation in breach of an arbitration agreement when an arbitration has not yet been
initiated; it is clear, in that case, that the New York Convention and national arbitration
legislation both apply and, in principle, require a stay of litigation. (289) The same result
is even more obvious where pre-arbitration dispute resolution processes – such as
consultations, mediation, or cooling-off periods – are underway.
Agreements providing for arbitration following a mediation process can result in
questions about the impartiality of the arbitrator if an unsuccessful mediator is
subsequently appointed to serve as arbitrator. (290) This possibility does not alter the
character of the dispute resolution mechanism, as an arbitration agreement, but instead
concerns how the arbitration must subsequently be conducted and the identity of the
arbitrator in that situation.
[g] “Engineers” and “Dispute Adjudication Boards”
In particular industries, specialized forms of dispute resolution agreements have been
developed which involve mechanisms that resemble both arbitration and expert
determination, but which are neither. This has been particularly true in construction and
building contracts, which historically have contained specialized dispute resolution
mechanisms (designed to provide both technical expertise and speed). (291)
In the international construction industry, contracts often provide for an “engineer”
(employed by the project owner) who plays a special contractual role vis-à-vis the owner
and the contractor. (292) This is particularly true under the so-called “FIDIC” civil
engineering contract. (293) This has been supplemented by more recent revisions of the
FIDIC contract, which provide for disputes to be resolved by a “Dispute Adjudication
Board” (subject to subsequent arbitration), rather than the engineer. (294)
The roles of the engineer and the Dispute Adjudication Board did not constitute

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 arbitration, but are instead a contractual mechanism for giving interim effect to a form of
expert determination. Those mechanisms are plainly not “arbitration,” because they are
(by their terms) non-binding, are not subject to the quasi-judicial procedural protections
of the arbitral process and involve a decision-maker who is not subject to the
requirements of independence and impartiality that accompany the arbitral process.
(295) Agreement to resolution of disputes by these mechanisms cannot be regarded as an
agreement to arbitrate, subject to international arbitration conventions and national
arbitration legislation, but is rather a sui generis and specialized form of non-binding
expert determination.
The recently-adopted 2015 ICC Dispute Board Rules provide for disputes to be resolved
by “Dispute Review Boards,” (296) “Dispute Adjudication Boards,” (297) or “Combined
Dispute Boards.” (298) Although recommendations of “Dispute Review Boards” are not
automatically binding on the parties, they become binding if the parties fail to object to
them within 30 days. (299) Conversely, decisions issued by “Dispute Adjudication Boards”
are automatically binding on the parties, although parties may nonetheless object to
them (again, within 30 days); if a party objects within 30 days, the dispute is referred to
arbitration. (300) Under the ICC Dispute Board Rules, the parties may also refer their
disputes to “Combined Dispute Boards,” which are empowered to make either
recommendations or decisions, depending on the circumstances of the dispute. (301)
The ICC Dispute Board Rules provide that “Dispute Boards are not arbitral tribunals and
their conclusions are not enforceable like arbitral awards.” (302) That conclusion rests on
the parties’ right to object to the decisions of Dispute Boards (typically in a subsequent
arbitration). (303) In other respects, however, including requirements for impartiality and
independence of Dispute Board members (304) and adjudicative procedures, (305)
Dispute Board proceedings are very difficult to distinguish from arbitration.
[h] “Baseball” Arbitration and “High/Low” Arbitration
There are a variety of forms of binding dispute resolution that have developed in
particular settings which resemble arbitration, but which also differ in decisive ways from
“normal” commercial arbitration. These procedures raise difficult, if infrequent,
analytical questions as to whether such dispute resolution mechanisms constitute
“arbitration” or not.
For example, so-called “baseball” or “final offer” arbitration (which originated in the
United States) involves an arbitral process where, at the conclusion of the parties’
submissions, each party provides the tribunal with its “best offer” in a sealed envelope.
(306) The tribunal is then charged with choosing one party’s “offer,” or the other party’s
“offer,” rather than making an independent determination of the “correct” resolution
under applicable law. Other forms of dispute resolution similarly limit the decision-
maker’s freedom to decide the parties’ dispute in a characteristically adjudicative
fashion, and instead prescribe a particular issue to be “answered” by the tribunal, as with
“high/low” or “bracketed arbitration.” In high/low arbitration, for example, the parties
agree on the minimum and maximum amounts that the arbitrator can award. (307)
Baseball or high/low arbitration is designed to encourage parties to compromise and
negotiate a settlement by putting forth a final or last best offer. (308) Because the
arbitrator cannot modify the offers proposed by the parties, and must instead only select
one or the other offer, the parties have an incentive either to settle, or to make offers
designed to fairly approximate the likely outcome of a decision. At the same time,
because the arbitrator is not free to craft his or her own award, and because parties
inevitably engage in tactical gamesmanship, baseball arbitration may produce arbitrary
or disproportionate results. (309)
It is debatable whether these sorts of dispute resolution mechanisms constitute
“arbitration” in the proper sense of the term. (310) Although these procedures involve
binding dispute resolution by a private decision-maker, selected by the parties, who
disposes of legal disputes, while affording substantial opportunities to be heard in an
adjudicative manner, they also are characterized by significant differences from most
arbitral processes (e.g., removal of tribunal’s discretion to consider remedies or to
resolve the dispute by application of the governing law to the facts). These differences
are difficult to reconcile with the tribunal’s adjudicatory role, which requires a material
measure of quasi-judicial independence from the parties. (311) It is uncertain whether
these differences remove such procedures from the ambit of arbitration but, at a
minimum, they push the outer limits of the definition. (312)

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 [i] “Rent-A-Judge”
Another form of dispute resolution (again, originating in the United States) is referred to
as “rent-a-judge,” and involves hiring a retired judge to conduct what is essentially a civil
trial, under private auspices. (313) The parties agree to be bound by the result,
sometimes subject to the same possibilities for appeal that exist in a “normal” civil
litigation. In principle, this dispute resolution mechanism is fairly characterized as
arbitration. It is a text-book example of a case where the label for a procedure does not
alter its substance: (314) arbitration before a “judge,” whether retired or not, is still
arbitration.
[j] Courts as Arbitrators
A few national courts provide what they describe as “arbitration” for the consensual
resolution of certain categories of disputes. This differs from individual judges serving, in
their private capacity, as arbitrators; (315) rather, some courts make their judicial panel,
filing and administrative apparatus and physical facilities available to provide parties
with what is described as the arbitration of disputes which parties consent to submit for
the “court’s” resolution.
A leading example of such a development is the Delaware Court of Chancery, where
Delaware state legislation permitted business entities to submit business disputes
(involving amounts in dispute in excess of $1 million) to arbitration by a judge of the
Chancery Court. (316) The Delaware arbitration scheme was ultimately invalidated on
domestic constitutional grounds (on the basis that the “court” was conducting judicial
activities in private, contrary to requirements for public hearings and access). (317)
It is unclear whether Delaware Chancery Court “arbitrations” would have satisfied the
definitions of arbitration under the New York Convention and FAA, which typically include
requirements for a non-governmental decision-maker. (318) A substantial argument can
be made that both the Convention and national law would apply to arbitrations
conducted by national court judges, provided that the arbitrations were the result of
consensual arbitration agreements and that arbitrators were not acting in their capacity
as members of a judiciary, with their decisions being subject to appellate and other
domestic review mechanisms. (319)
In 2015, Delaware enacted the Delaware Rapid Arbitration Act, in a renewed effort to
establish a court-annexed arbitration mechanism. The new Delaware mechanism may
survive domestic constitutional challenges because it does not involve judges sitting as
arbitrators. (320)

[3] Amiable Composition or Arbitration Ex Aequo et Bono

Amiable composition and arbitration ex aequo et bono are variations of commercial
arbitration in which the parties expressly agree that the arbitrator is not bound by strict
rules of law, but is free to give effect to general considerations of equity and fair-play.
(321) The arbitrators’ freedom in such proceedings to disregard the law, and make a
purely “equitable” or “commercial” decision, arguably distinguishes these forms of
dispute resolution from “true” arbitration, and therefore take them out of the definition
of arbitration. One might argue, for example, that the essence of arbitration’s
adjudicatory character is the application of law (322) – and that the deliberately a-legal
nature of amiable composition and arbitration ex aequo et bono is fundamentally
irreconcilable with this character.
Indeed, some definitions of arbitration appear to adopt this conclusion, requiring that
arbitrators apply legal rules in the resolution of the parties’ dispute. According to one
authority:
“[T]he ‘common incidents’ of ‘classic arbitration,’ include[d] (i) an
independent adjudicator, (ii) who applies substantive legal standards …, (iii)
considers evidence and argument (however formally or informally) from each
party, and (iv) renders a decision that purports to resolve the rights and duties
of the parties, typically by awarding damages or equitable relief.” (323)
Although there is force to this analysis, it clearly should be rejected: the application of
legal principles or rules is not an essential element of arbitration. Amiable composition
and arbitration ex aequo et bono closely resemble other forms of arbitration in their
procedural conduct, and in the tribunal’s making of a final and binding award. Indeed,
arbitration historically often bore closer resemblances to arbitration ex aequo et bono

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 and amiable composition than to many “normal” contemporary international arbitrations.
(324)
Ultimately, it is the character of the tribunal (non-governmental persons selected for a
particular dispute or category of disputes), the procedures (adjudicative) and the result
(a binding award) that qualifies amiable composition and arbitration ex aequo et bono as
“arbitration.” The fact that the parties have chosen to contract out of substantive national
law – as and where permitted by national law (325) – does not alter the fundamental
character of their agreement to arbitrate, and instead only affects the substantive
standards that are applied in such an arbitration. Given this character, amiable
composition and arbitration ex aequo et bono are readily characterized as “arbitration” in
the sense that international arbitration conventions and national legislation use the
term, notwithstanding the fact that the arbitrators do not apply legal rules in resolving
the parties’ dispute.
[4] Adjudicatory Character of Arbitration
As discussed above, an essential feature of “arbitration” is its “judicial” character. (326)
This is affirmed in both national court decisions (327) and commentary (328) addressing
the question of what constitutes an arbitration agreement. It is also consistent with the
historical development of international commercial and state-to-state arbitration. (329)
Thus, a leading common law definition of the judicial function (or, more specifically, the
adjudicative process) is a “process of decision that grants the affected party a form of
participation that consists of the opportunity to present proofs and reasoned arguments.”
(330) The arbitral process not only satisfies this definition, but also bears other
characteristics of adjudication, in which the arbitrators serve a judicial function; these
additional characteristics include the provision of a reasoned, written decision, the
legally-binding character of the decision, and the application of procedural safeguards of
the parties’ rights. (331)
Some commentators have suggested that arbitrators are not, in fact, comparable to
judges, because of various differences or asserted differences between litigation and the
arbitral process. These authorities argue that arbitrators are selected by the parties, are
free to decline appointment, are compensated contractually by the parties, are not
bound by precedent or strict rules of evidence, are not subject to the same appellate
review as national courts and may (in some settings) be predisposed towards the party
that nominated them. (332) In the words of one commentator, these factors make it a
“gross misapproximation” to equate arbitrators with judges. (333)
These observations misconceive the differences between the arbitral and litigation
processes. There are, to be sure, important differences between the arbitral and judicial
processes and between arbitrators and judges – just as there are differences between
judicial processes and judges in different national legal systems (i.e., a Japanese judge
differs from a Brazilian, Saudi, Swiss, or U.S. judge). These differences do not, however,
alter the reality that arbitrators perform a quintessentially adjudicative function by
resolving disputes in a binding legal manner, expressed in a reasoned decision, based
upon the law and record, following legal or evidentiary submissions by the parties. (334)
It is the arbitrator’s performance of this function – and not differences in how this
function is performed – that is decisive in characterizing it as an adjudicative action.
This conclusion is not contradicted by consideration of the various factors cited by some
commentators to support claims that arbitrators do not perform a judicial or
adjudicatory function. On the contrary, a number of these factors suggest that
contemporary international arbitration is a more developed adjudicatory process than
litigation, at least litigation as it is practiced in many jurisdictions.
The arbitrator’s adjudicative function is in no way contradicted by the fact that
arbitrators are often selected by the parties (or a party) and are free to decline
appointment. (335) These factors go to how arbitrators are chosen for particular
arbitrations, not to the functions that the arbitrators perform in the arbitrations after
appointment (which, as discussed above, is quintessentially adjudicative (336) ).
More fundamentally, the fact that parties can select arbitrators who are optimally-
qualified for their particular dispute advances, rather than contradicts, an objective
adjudicative process: as discussed above, the institution of party involvement in
selecting the arbitral tribunal is designed (and was historically used) precisely to ensure
that parties from differing jurisdictions and legal cultures will have a full and equal

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 opportunity to present their case to a decision-maker or set of decision-makers who can
fairly and competently evaluate their submissions. (337) Likewise, the fact that
arbitrators can, and do, decline appointments because there may be doubts about their
independence or because they are unable expeditiously to resolve the dispute again
enhances, rather than contradicts, their adjudicatory function. (338)
Equally, the fact that arbitrators are compensated by the parties, while judges are
(generally) compensated by the state, does not contradict the arbitrator’s adjudicative
role (339) : it is what an arbitrator does, not how he or she is paid, that determines the
nature of his or her role. The arbitrator’s functions are no different if paid by the parties,
the state, or not at all, just as a lawyer’s function remains that of a lawyer, whether
providing paid assistance, state-funded legal aid, or pro bono representation. Moreover,
it is very difficult to understand how, in an international setting, it is less neutral for both
parties jointly to pay the arbitrator than for one party’s home state taxpayers to fund the
local court system alone; rather, the former is plainly a more neutral and independent
funding mechanism.
The fact that arbitrators do not follow strict rules of evidence (340) is of no import
(because arbitrators do apply evidentiary rules and because rules of evidence differ
widely around the world (341) ), as is the reduced role of precedent in some arbitral
contexts (342) (because the role of precedent also differs widely in different legal
systems around the world, including in international arbitration (343) ). Also irrelevant is
the fact that no transcript is kept of some arbitrations (344) (because transcripts are the
exception, rather than the rule, in litigations in most legal systems and because
transcripts or their equivalent are commonplace in many international arbitrations (345)
) and the fact that arbitrations are generally confidential (346) (because closed hearings,
sealed records and the like are characteristics of obviously judicial proceedings around
the world and because many arbitrations are not confidential (347) ). Instead, the
fundamental point is that arbitrators impartially decide disputes based upon the law
and the evidentiary record, as presented by the parties in the exercise of their rights to
be heard, which is the essence of the adjudicative function. (348)
Likewise, it is in no way contrary to the judicial function for arbitral awards to be subject
to only limited appellate review. (349) It is the process by which an award is made, not
the process by which it might be reviewed, that determines whether the arbitrator has
fulfilled a judicial role. Moreover, it is precisely because arbitrators fulfill a judicial
function that awards are accorded binding and final legal effects by both international
conventions and national law, with exceptions to this status being recognized only in
cases of gross departures from judicial (not non-judicial) norms. (350)
Similarly, there is no substance to the suggestion that arbitrators, unlike judges, are
supposedly not “essential to the preservation of democracy.” (351) Most obviously, courts
and other tribunals perform judicial functions in monarchies, aristocracies, religious, or
totalitarian states and other political systems – not just democracies. Equally, the role of
commercial litigation in preserving democracy is perhaps discernible, but hardly lies at
the center of democratic values and institutions: the political and civil rights values of a
democracy that are safeguarded by the judiciary are fulfilled in contexts other than
commercial litigation between businesses. And, more fundamentally, the parties’
autonomy to resolve “their” disputes in the manner they wish is itself a vitally-important
aspect of an open, democratic society and of the civil rights of autonomy that such
societies prize and that historically has served as protection against (not an instrument
of) governmental oppression. (352)
The only serious issue raised concerning the international arbitrators’ adjudicative
function concerns non-neutral party-nominated arbitrators or advocate-arbitrators which
are used in some legal traditions. (353) As discussed elsewhere, some common law legal
systems historically permitted (and occasionally still permit) either arbitrator-advocates
or co-arbitrators who are predisposed towards the party that nominated them; (354)
these arbitrators are not only permitted, but are expected, to advocate “their”
nominating party’s case in the tribunal’s deliberations. (355) Although increasingly rare,
the predisposed co-arbitrator’s function in these types of arbitrations is an unusual
hybrid of judicial and advocacy functions, which differs in important respects from most
traditional adjudicative roles. (356)
These observations regarding the role of predisposed co-arbitrators do not apply to co-
arbitrators in other settings, including particularly co-arbitrators who are required to be
impartial and unbiased, as is the case in most contemporary international arbitrations.

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 (357) The fact that a party may appoint a co-arbitrator of its choice (including a co-
arbitrator of its own nationality), following an interview, does not alter that co-
arbitrator’s obligations of impartiality and independence (358) nor convert the co-
arbitrator into an advocate or party representative. (359) There are well-established and
respected judicial traditions (such as the International Court of Justice) that permit
party-nominated judges without this resulting in questions about the judicial role of such
nominees. (360)
There are of course instances in which co-arbitrators do not comply fully with their
obligations of impartiality; but these actions are comparatively infrequent and almost
always obvious to (and, at least in large part, compensated for by) the presiding
arbitrator and other co-arbitrator. (361) These actions also provide grounds for removing
the arbitrator or annulling an arbitral award, to permit the arbitral process to proceed
properly. (362) The existence of departures from applicable requirements of impartiality
does not alter the fundamentally adjudicative character of arbitration, or the arbitrators
– just as departures from judicial ethical rules by individual judges do not alter the
nature of national judicial systems.
Equally, suggestions that the co-arbitrator role is necessarily partial, and therefore non-
adjudicative, (363) ignore the realities of international litigation in national courts. If
parties from States A and B agree to litigate their disputes in the courts of State A, before
judges who are nationals of State A, no one would doubt that those judges will perform a
judicial function, notwithstanding their nationalities; this conclusion is not altered if the
party from State A is a major financial institution and State A is a leading international
financial center, whose courts avowedly endeavor to develop legal rules that safeguard
State A’s status in that regard.
The reality in international dispute resolution is that no judicial process will involve a
tribunal that is unpredisposed in all respects. (364) Particularly in international matters,
every adjudicatory procedure occurs in a particular setting, where the decision-makers
will have a measure of predisposition on particular issues and involving particular
parties. The use of co-arbitrators in the international arbitral process is an effort to
manage and mitigate the foregoing risk in the international setting, by providing each
party with equal involvement in constituting a tribunal that will be as neutral and
impartial as possible.
To be sure, there will be instances where the co-arbitrators may harbor either overt or
subtle predispositions towards “his” or “her” party. But such a co-arbitrator is surrounded
by a set of restraints, including obligations of impartiality, challenge procedures, another
co-arbitrator and a presiding arbitrator selected in a neutral manner. These restraints
channel the co-arbitrator’s energies into a mechanism and process that is both
adjudicative and that compares favorably to the resolution of international disputes by
national courts in terms of neutrality – as the enduring and increasing use of
international arbitration confirms.
Although there have been only limited empirical studies of the arbitral process, the
results of these efforts, together with anecdotal evidence, confirm the adjudicative
character of that process. The evidence provided by published international arbitral
awards strongly supports the view that arbitrators perform an adjudicatory function: as
noted elsewhere, international arbitral awards are almost invariably written and
reasoned, typically not dissimilar in terms of legal reasoning and evaluation of the
evidence from national court judgments in developed jurisdictions. (365) This is
supported by several empirical studies which indicate that arbitrators’ decision-making
shows a strong resemblance to judicial decision-making, in that there is little evidence of
overt “baby-splitting,” (366) which would arguably be inconsistent with an adjudicative
function; rather, arbitral awards very frequently grant or reject claims in full or
substantial part, with principled distinctions explaining other results. (367)
In sum, as national courts and commentators have concluded in a wide variety of
contexts, international arbitration is characterized by its adjudicative nature. This
distinguishes arbitration from expert determination, (368) conciliation/mediation (369)
and some other (less common) forms of dispute resolution. (370) At the same time, as
discussed below, it also informs the procedural requirements applicable to the arbitral
proceedings (371) and the impartiality and independence obligations of the arbitrators.
(372)

[D] Future Directions: How Should “Arbitration” Be Defined?

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 As discussed above, there are nearly as many definitions of arbitration as there are
commentators or courts addressing the subject. (373) Nonetheless, there is a common
core to these definitions which is widely-accepted, even if not explicitly prescribed, in
virtually all developed legal systems. This common understanding of the term applies
equally to defining the term “arbitration agreement” in international arbitration
conventions (including the New York Convention and Inter-American Convention) and
national arbitration legislation (including the UNCITRAL Model Law).
The most comprehensive and precise definition of “arbitration,” which emerges from
these various views, and from a review of the different forms of dispute resolution
employed in contemporary commercial affairs, is that arbitration is a process by which
parties consensually submit a dispute to a non-governmental decision-maker, selected
by or for the parties, who renders a binding decision finally resolving that dispute in
accordance with neutral, adjudicative procedures affording the parties an opportunity to
be heard. It is this definition – derived from a broad range of international and national
authorities – that should be applied, inter alia, under Article II of the New York
Convention as a uniform, internationally-mandatory definition of arbitration, from which
Contracting States may not properly deviate, (374) and under Article 7 of the UNCITRAL
Model Law and other national arbitration legislation. (375)
This definition resembles other efforts on the issue, (376) but emphasizes the
requirement that arbitration be conducted in a manner which affords the parties an
opportunity to be heard in an adjudicatory or quasi-judicial manner. (377) This
qualification is necessary in order to distinguish arbitration from other forms of
alternative dispute resolution, particularly expert determinations and valuations. (378)
Unless a dispute resolution process involves some material opportunity for the parties to
present their legal positions and proof to the decision-maker in accordance with neutral
procedures, broadly in the procedural manner of a judicial or adjudicatory proceeding, it
cannot properly be considered to be arbitration. (379)
The difficult issue in most cases will be what degree of adjudicative (or “judicial” or
“quasi-judicial”) procedures will be necessary to qualify a dispute resolution mechanism
as “arbitration.” In general, it is appropriate to err on the side of flexibility,
characterizing even relatively informal or technical procedures as “arbitration.” This is
consistent with the central role of party autonomy in selecting arbitral procedures (380)
and the historic procedural flexibility and informality of the arbitral process. (381)
Moreover, application of the statutory regimes for arbitration to such arrangements –
involving considerable informality and expedition – would not appear to work unfairness,
and would have the benefits of providing predictability and relative clarity to both
courts and litigants. (382)
Finally, the question whether a particular dispute resolution clause constitutes an
“arbitration agreement” should also leave ample scope for effectuating the parties’
intentions and wishes. If parties intend that the legal regime applicable to “arbitration
agreements” will apply to their dispute resolution procedure, it is difficult to see why this
should not ordinarily be accommodated, even if they have not, strictly speaking, agreed
to “arbitrate.” This is consistent with principles of respect for party autonomy in
international commercial matters, (383) while, at the same time, there would appear to
be only limited public policy interests in preventing commercial parties from applying
the procedural and legal protections of national arbitration legislation to such forms of
dispute resolution as they wish.
For example, if the parties agreed to a highly informal, technically-oriented meeting with
an expert to render a binding resolution of a technical dispute, which they have
deliberately provided would be treated as an “arbitration,” subject to national
arbitration legislation, then it is difficult to see why this characterization should not be
accepted. (384) To be sure, statutory mechanisms for recognizing and enforcing
“arbitration agreements” (and “arbitral awards” (385) ) should only be available where
parties have clearly and knowingly provided for their application to a process not
ordinarily regarded as arbitration. (386) But, where this occurs, it is difficult to see why
the parties’ agreement should not, insofar as possible, be respected. (387)

[E] Arbitration Before A Natural Person

Most arbitrations are conducted before an arbitrator who is a natural person, rather than
a corporation or other legal entity. This is in part reflective of arbitration’s adjudicatory
character, where the tradition of individual (rather than communal or corporate) judges

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 is deep-seated. It is therefore not surprising, that, in some countries, arbitrators must be
natural persons, (388) nor that one virtually never encounters international arbitrations
involving arbitrators that are not natural persons. (389)
Despite this, it is possible in many legal systems for a juridical person to be an arbitrator
(390) and there is a substantial argument that prohibitions against arbitration before
legal entities contradict the New York Convention’s requirement that Contracting States
recognize and enforce agreements to arbitrate. (391) Nonetheless, the uncertainties that
such arrangements give rise to, with regard to enforcement, counsel strongly against
utilizing them in practice.
Some commentators have suggested that computer-based technology may be capable of
being employed to resolve some categories of disputes. (392) Assuming this prediction is
correct, and that parties were willing to agree to such a dispute resolution mechanism,
questions would arise concerning national law requirements that arbitrators be natural
persons. (393) Related questions concerning the application of requirements for
independence and impartiality, (394) and an opportunity to be heard, (395) would also
arise. It is unlikely that these issues will be of more than theoretical interest for the next
decade.

§2.03 OTHER JURISDICTIONAL REQUIREMENTS AFFECTING LEGAL REGIME

APPLICABLE TO INTERNATIONAL ARBITRATION AGREEMENTS
As noted above, international arbitration conventions and national legislation contain a
number of jurisdictional requirements that must be satisfied before these instruments
will apply to an arbitration agreement. (396) Some such requirements restrict the types
of arbitration agreements to which these instruments apply – for example, imposing
requirements that the arbitration agreement arise in respect of a “defined legal
relationship,” in a “commercial” relationship and in an “international” context. Other
“requirements” are more in the nature of confirmations that particular matters may
validly be the subject of an arbitration agreement – for example, providing that an
arbitration agreement may deal with “noncontractual” (as well as contractual) matters
and “future” (as well as existing) disputes.
Finally, both international arbitration conventions and national arbitration legislation
also contain a written form requirement, that serves as a jurisdictional prerequisite for
application of the legal regimes established by such instruments. (397) These written form
requirements must sometimes be satisfied to establish the validity of arbitration
agreements. (398) Nonetheless, as discussed below, these written form requirements also
serve as a condition for application of the pro-arbitration regimes of leading
international conventions (including the New York Convention) and some national
legislation. (399)

[A] “Defined Legal Relationship”

Some legislative frameworks for arbitration agreements are limited to agreements “in
respect of a defined legal relationship.” That is true of the New York Convention, the
UNCITRAL Model Law and other developed national arbitration legislation. (400) The
effect of such limitations is generally to place agreements to arbitrate which are not “in
respect of a defined legal relationship” outside of the scope of “pro-arbitration”
frameworks of international and national arbitration instruments.
Under some legal systems, the “defined legal relationship” requirement is also a rule of
substantive validity (and not just a jurisdictional requirement for national arbitration
legislation). In these legal systems, parties cannot validly agree to arbitrate “any
disputes which may arise between us in the future,” but must instead specify with greater
precision what categories of disputes they intend to arbitrate. (401) That is illustrated
well by Article 4 of the former Swiss Concordat on Arbitration, which provided:
“Arbitration clauses may refer only to future disputes arising out of a particular legal
relationship.” (402)
Some authorities have derived broadly similar meanings from the New York Convention’s
provision, in Article II(1), limiting the obligation of Contracting States to recognize
arbitration agreements to agreements to resolve disputes “in respect of a defined legal
relationship.” In the words of one commentary, “[p]arties cannot enter into an unlimited
agreement that any controversy that should ever arise between them is subject to
arbitration. There must be some degree of specificity in defining the kind of controversy

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 one undertakes to submit to arbitration.” (403)
In practice, the “defined legal relationship” requirement has seldom been tested and has
very limited practical importance. Extremely broad arbitration clauses, (404) as well as
arbitration clauses with no express limits, (405) have frequently been enforced.
Conversely, there are virtually no reported cases in which an arbitration agreement has
been held invalid on the grounds that it does not deal with a “defined legal relationship.”
(406)
One arguable exception arose in a New Zealand decision, where the arbitration clause
provided: “any dispute which may arise between the parties to this agreement shall be
settled by arbitration.” The New Zealand court held that the clause was not “in terms,
confined to disputes which arise out of the particular business arrangement,” and “ex
facie it would cover any dispute whatever its character.” (407) To this possibility, the court
remarked “obviously some limitation has to be placed on it,” though not explaining why
this “had” to be done, and therefore interpreted the clause as extending only to disputes
related to “the commercial transaction covered by the contract.” (408)
In principle, and despite some views to the contrary, (409) there is little, if any, reason
that even the most broadly drafted international arbitration agreements should not be
given effect. Provided that applicable standards of unconscionability are satisfied (410)
and that the disputes are arbitrable, (411) agreements to arbitrate open-ended
categories of future disputes compromise no public values and offer significant
efficiencies. For example, if two sophisticated multinationals agreed to arbitrate any
future dispute arising between them in a particular forum, there is scant reason to refuse
to give effect to this bargain. It would avoid future forum shopping, jurisdictional
uncertainty and similar costs, while doing nothing to prejudice public values or order.
(412)
More controversial (but much less likely in practice) would be agreements among a large
number of commercial entities (e.g., half of all Fortune 250 companies), in which all
disputes among any two or more of these companies were submitted to arbitration. This
would be distantly related to the (non-binding) CPR pledges that a number of major
multinational corporations have made to resolve disputes among themselves by
alternative dispute resolution mechanisms. (413)
If a comparable selection of major multinationals were to agree that any international
disputes among their number would be resolved by international arbitration, in a
particular situs and under particular rules, concerns might be raised regarding the
impact of such arrangements on local judicial, legislative and governmental
competences. It would likely be said that this sort of agreement involved an
unacceptable engagement by private parties in the collective legislative ordering of
dispute resolution mechanisms and decision-making. (414) On the other hand, as long as
the nonarbitrability and public policy doctrines were available to protect particular
public values (if necessary), (415) it is not clear why such arrangements should not be
enforced (as a means of relieving courts and governmental budgets of the burden of
commercial disputes). (416)
A debate over the foregoing considerations would be engaging, but is unlikely to come to
pass, outside academic discourse, because of the reluctance of private parties to commit
themselves to open-ended arrangements of this sort. However, the types of concerns that
this debate would involve illustrate the absence of any serious objection to the validity
of expansive arbitration agreements involving only two or limited numbers of parties.
(417)

[B] “Commercial” Relationship

Some international and national arbitration instruments are expressly or impliedly
limited in scope to arbitration agreements arising from “commercial” relationships. (418)
This has the effect of excluding “non-commercial” matters from the scope of the pro-
arbitration regimes of such instruments. In turn, this exclusion can lead to definitional
questions and create opportunities for parochial resistance to contemporary pro-
arbitration enforcement regimes.
At the same time, as also discussed below, use of the term “commercial” has frequently
played a positive role in the international arbitral process. It is increasingly widely
accepted that the term “commercial” extends to the entire gamut of disputes arising
from international trade, financial, investment and related economic transactions,

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 without excluding particular matters, such as technology, intellectual property, natural
resources, employment, or other intensively-regulated fields. In these circumstances, the
contemporary “requirement” of a commercial relationship in fact typically operates as a
positive confirmation of the permissible – and expansive – breadth of international
arbitration agreements, rather than a meaningful negative limitation. (419)

[1] International Arbitration Conventions

[a] Geneva Protocol
Historically, the “commercial” scope of modern international arbitration has its roots in
Article 1 of the Geneva Protocol. (420) Article 1 required that Contracting States recognize
arbitration agreements “relating to commercial matters or to any other matter capable
of settlement by arbitration.” It went on to provide:

“Each Contracting State reserves the right to limit the obligation mentioned
above to contracts which are considered as commercial under its national law.
Any Contracting State which avails itself of this right will notify the Secretary-
General of the League of Nations, in order that the other Contracting States
may be so informed.” (421)

As the text of Article 1 of the Geneva Protocol suggests, the “commercial” requirement
appears to have been related to notions of nonarbitrability – reflected in linkage of the
requirement to “other matter[s] capable of settlement by arbitration” and the apparently
decisive role of individual state’s national laws in defining what was “commercial.” (422)
In turn, early national arbitration statutes in many jurisdictions were limited to
“commercial” relationships. (423) This reflected the historic focus of arbitration in many
jurisdictions as a means for resolving business disputes, (424) as well as traditional
restrictions under some national legal systems regarding the scope of arbitrable
disputes. (425)

[b] New York Convention

The New York Convention maintained a limited form of “commercial” requirement
(modeled generally on that of the Geneva Protocol). Article I(3) of the Convention
provides that Contracting States may declare that the Convention applies only to
“relationships … which are considered as commercial under the national law of the State
making [the] declaration.” (426)
The “commercial” exception in Article I(3) was adopted because some civil law nations
took the position during negotiations of the Convention that their domestic arbitration
statutes applied only to commercial (and not non-commercial) matters, and that they
could ratify the Convention only as to the former. (427) The “commercial” relationships
requirement continued to bear close parallels to the nonarbitrability doctrine, reflected
in Articles II(1) and V(2)(a) of the Convention, apparently permitting individual
Contracting States to define particular categories of “non-commercial” disputes as falling
outside the scope of such states’ commitments under the Convention. (428)
A substantial number of nations have made declarations under Article I(3). (429) For
example, the U.S. reservation provides that the Convention will be applied “only to
differences arising out of legal relationships, whether contractual or not, which are
considered as commercial under the national law of the United States.” (430) In practice,
these reservations and the Convention’s “commercial” requirement have given rise to few
difficulties.
[i] Meaning of “Commercial” Under New York Convention
Even in Contracting States that have adopted a commercial reservation, national courts
have generally not construed the “commercial” relationship requirement to limit the
scope of the Convention. (431) That is particularly true in the United States, where courts
have repeatedly rejected arguments that particular disputes are not “commercial” within
the meaning of the Convention. (432) Several lower U.S. courts have indicated that the
definition of “commercial” under the Convention is broader than that of “commerce”
under the domestic FAA. (433)
U.S. courts have, unsurprisingly, held that a “classic” example of a commercial
relationship is one “involving the purchase and sale of goods by two corporations.” (434)
Additionally, it is clear in the United States that the term “commercial” relationship

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 includes employee-employer relations, (435) consumer transactions, (436) shareholder
disputes, (437) contracts where a foreign state constructs buildings for (and leases them
to) a foreign investor, (438) relationships giving rise to antitrust and other public law
disputes, (439) cases involving claims by foreign regulatory authorities, (440) insurance
and reinsurance contracts (441) and maritime agreements. (442) Emphasizing the breadth
of “commercial” activities, one U.S. court held that “[t]he fact that the employer-
employee relationship may include a degree of fiduciary obligation does not deprive it
of its commercial character.” (443)
U.S. courts have also concluded that neither the U.S. “commercial” reservation to the
Convention nor the Convention and its U.S. implementing legislation, limit the scope of
the Convention in U.S. courts to those relationships which are subject to the domestic
FAA. (444) Thus, U.S. courts have held that arbitration agreements in seamen’s
employment contracts, which are specifically excluded from the scope of the domestic
FAA, (445) are nonetheless subject to the New York Convention and the FAA’s second
chapter. (446) As one court reasoned:

“the language of the Convention, the ratifying language, and the [FAA’s second
chapter] implementing the Convention do not recognize an exception for
seamen employment contracts. On the contrary, they recognize that the only
limitation on the type of legal relationship falling under the Convention is that
it must be considered ‘commercial’ and we conclude that an employment
contract is commercial.” (447)
The court also concluded that, even if there were questions as to the correctness of this
conclusion, “doubts as to whether a contract falls under the [Convention and its
implementing legislation] should be resolved in favor of arbitration.” (448)
Courts from other developed jurisdictions have also generally interpreted the
“commercial” relationship requirement very broadly. (449) Indeed, most reported cases
have raised no serious questions as to the scope of the requirement. (450) In Carters
(Merchants) Ltd v. Ferraro , for example, an Italian court held that the arbitration clauses
contained in the parties’ contract fell within the New York Convention. The court noted
that the clauses referred to a contractual sales transaction, which was plainly
“commercial” under Italian law. (451)
Nevertheless, there is still scope for differences over the Convention’s “commercial”
requirement. In other contexts, such as under the foreign sovereign immunity and act of
state doctrines, national courts have struggled with “commercial” exceptions. (452)
Disputes can therefore be anticipated over the application of the Convention in the
context of “public law” statutory rights, such as the antitrust laws, (453) and concession
agreements or other contracts involving elements of national sovereignty. (454)
Alternatively, suggestions have been made that consumer transactions (455) and
employment relations (456) should be treated as non-commercial.
Motivated by such concerns, a few isolated national court decisions have adopted what
appear to be narrow definitions of “commercial” relationship under the Convention. (457)
For example, in one early decision, an Indian court held that agreements concerning the
transfer of technology were not “commercial” under Indian law or the Convention. (458)
Likewise, the Tunisian Cour de Cassation held that a contract for the architectural design
in a town-planning program was not commercial. (459)
These decisions are retrograde and fail to give effect to either the Convention’s
objectives or to contemporary conceptions of “commercial.” They typically reflect
parochial efforts to safeguard local interests, without due regard for the Convention’s
objectives of ensuring a neutral, efficient means of resolving international disputes. As
discussed below, they also adopt artificial and implausible conceptions of what
constitutes “commercial,” which do not accord with either parties’ expectations or the
needs of international commerce.
[ii] International Limits on Definition of “Commercial” Under New York Convention
Read literally, Article I(3) of the New York Convention arguably leaves it to individual
Contracting States to define “commercial” under national law, without imposing any
international limits on national definitions. (460) This interpretation of Article I(3) would
result in the provision largely duplicating the nonarbitrability doctrine, (461) by
permitting Contracting States to rely on local law to avoid application of the Convention’s
pro-arbitration regime. It would also permit dilution or circumvention of the Convention’s

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 objectives through adoption of artificially narrow definitions of the term “commercial.”
Despite this possibility, the Convention’s “commercial” requirement has in practice
produced few such difficulties in most national courts, and the clear trend has been
towards a liberal and expansive definition of the term.
Notwithstanding the literal language of Article I(3) of the Convention, a substantial case
can be made that Contracting States are not free to adopt whatever definition they
choose of the term “commercial.” Permitting this type of unilateral action without any
sort of international limit would effectively allow states to empty the Convention of most
or all meaningful obligations, (462) which cannot have been the drafters’ intentions.
Rather, the better view is that the Convention leaves Contracting States free, subject to
an internationally-defined conception of “commercial,” to adopt particular reservations
within this international definition based on specific national law definitions. That is, a
Contracting State is free under Article I(3) to make a reservation declaring that it does not
accept the Convention’s obligations as to particular non-commercial matters (e.g.,
domestic relations), but a state is not free to categorize what are properly regarded, from
an international perspective, as “commercial” matters (e.g., contract claims arising from
a joint venture agreement) as “non-commercial,” and thereby to evade the Convention’s
obligations with regard to such matters. (463)
Under this analysis, if a Contracting State wished to do so, it would remain free to invoke
nonarbitrability and public policy exceptions to the recognition of arbitral awards
(Article V(2)) (464) and arbitration agreements (Article II(1)). (465) Again, however, a
Contracting State could not define commercial matters to be non-commercial. In
addition to limiting the possibilities that the Convention’s objectives would be frustrated
or circumvented, this analysis would also reduce duplication between the Convention’s
commercial relationship requirement and nonarbitrability exception. It would do so by
leaving Contracting States free to exclude genuinely non-commercial disputes from the
Convention, if they chose to do so, while also adopting more carefully-tailored public
policy and nonarbitrability restrictions as to particular categories of disputes under
Articles V(2)(a) and II(1).
In terms of the content of the term under the Convention, a “commercial” relationship
should have its ordinary meaning, being a relationship involving an economic exchange
where one (or both) parties contemplate realizing a profit or other benefit. This definition
is consistent with the weight of lower court authority under the Convention (466) and the
definition of the term in other contexts. (467) It is a liberal, expansive definition that
includes all manner of business, financial, consulting, investment, technical and other
enterprise.
Among other things, the foregoing definition of “commercial” includes consumer
transactions and (less clearly) employment contracts, thereby bringing agreements to
arbitrate disputes arising from such matters within the Convention. This leaves
Contracting States free, within the Convention’s other limits, to adopt rules of substantive
validity or nonarbitrability tailored to employment or consumer relations – which is
preferable to a categorical exclusion of the Convention’s protections in such cases:
Contracting States may then permit the arbitrability of certain kinds of employment or
consumer disputes, in which case the Convention would apply, but not others, in which
case the dispute will be nonarbitrable. (468) Indeed, as discussed in greater detail
below, this would facilitate the use of international arbitration to resolve at least some
types of cross-border consumer or international employment disputes in ways that can
be fairer and more effective than traditional domestic litigation. (469)
It is also important to note that the character of a relationship as “commercial” is not
affected by the types of claims or disputes that arise from that relationship. The
commercial relationship requirement focuses only on the nature of the underlying
relationship between the parties, and not on whether the parties are asserting contract
claims, statutory claims, or other types of claims as a result of disputes that have arisen
in the course of their relationship. Where a party asserts claims that, under national law,
are not capable of settlement by arbitration, this can be addressed by the
nonarbitrability doctrine (under Article II(1) and V(2)(a) of the New York Convention and
parallel provisions of national law); it is these provisions, and not the “commercial”
relationship requirement, that look to the character of the parties’ claims and the subject
matter of their dispute.
Finally, there are also good grounds for Contracting States to reconsider their

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 “commercial” reservations under the Convention as a matter of policy, in order to prevent
the definitional disputes and parochial responses discussed above. The better approach
to Article I(3) was adopted by France in 1989, which withdrew the commercial reservation
that it made when originally ratifying the New York Convention. (470) That removes the
need for definitional debates about what relationships, and arbitration agreements, are
“commercial.” Similarly, Slovenia followed this approach in 2008 when it withdrew the
declaration it had made when acceding to the New York Convention in 1992. (471)
It does not appear that other states have yet followed France and Slovenia’s example,
although its logic has much to recommend it. At the same time, as discussed above, most
Contracting States’ reservations for “non-commercial” matters have been invoked
relatively infrequently, making the need for such withdrawals less pressing.
[c] European Convention
Other international arbitration conventions have partially or entirely avoided the
difficulties arising from the New York Convention’s approach to the “commercial”
relationship requirement. The 1961 European Convention is titled the “European
Convention on International Commercial Arbitration” and applies to arbitration
agreements “concluded for the purpose of settling disputes arising from international
trade between physical or legal persons.” (472) In contrast to the literal terms of the New
York Convention, this definition expressly adopts a uniform, international standard for
“international trade,” from which individual Contracting States are not free unilaterally to
depart. (473) Although this does not necessarily prevent Contracting State courts from
adopting idiosyncratic interpretations of the Convention, it materially limits the scope
for doing so, by explicitly adopting an international (rather than domestic) standard.
(474)
Less helpful is the European Convention’s reference to international “trade,” rather than
“commercial” relations. This change in terminology might be misused to imply a narrow
definition of “commercial” in other instruments (including the New York Convention and
the UNCITRAL Model Law) or, conversely, act as an exclusion of financial, investment and
other matters arguably not concerning “trade.”
In fact, the European Convention’s drafters were seeking to make clear that the
Convention applies broadly to all agreements arising out of international trade, finance
and investment, without regard to historic or parochial distinctions between
“commercial” and “non-commercial” matters. (475) That objective could better have been
accomplished by making clear the contemporary, expansive international understanding
of “commercial.” Nonetheless, it is confirmed by the reference in the Convention’s title to
“International Commercial Arbitration,” leaving little room for suggestions that the term
“commercial” has a different meaning than “trade.” (476)
[d] Inter-American Convention
The Inter-American Convention applies to any agreement “in which the parties undertake
to submit to arbitral decision any differences that may arise or have arisen between
them with respect to a commercial transaction.” (477) Again, this improves on the New York
Convention, by removing any reference to national law definitions of “commercial,” and
instead expressly adopting a uniform international definition of the term. (478)
Nonetheless, the Inter-American Convention may be criticized for referring to a
“commercial transaction”: that definition arguably excludes non-transactional
commercial conduct or disputes arising outside the context of a specific transaction, and
thereby creates scope for unnecessary jurisdictional disputes. (479)

[e] Future Directions: “Commercial” Requirement in International Arbitration Conventions

The clear trend of international instruments and state conduct during the past nine
decades has been away from parochial definitions of “commercial,” and towards an
expansive, international understanding of the term, extending to all forms and
modalities of international trade, finance, investment, consulting, technical and similar
activity characteristic of earning a profit or realizing other economic returns or benefits.
That is reflected in the express adoption of uniform international standards in the
European and Inter-American Conventions, as well as by the liberal interpretation of the
term “commercial” under the New York Convention by virtually all authorities in virtually
all leading jurisdictions. As discussed below, this trend is also consistent with
contemporary developments in the treatment of “commercial” requirements under
national arbitration legislation. (480)

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 The “commercial” relationship requirement in the New York Convention, and the Inter-
American Convention’s similar reference, should be interpreted consistently with these
developments. As discussed above, these provisions should be interpreted as prescribing
international limits on what a state may characterize as non-commercial under local law;
in particular, Contracting States should not be permitted to define matters which are
characteristically engaged in for profit, in negotiated economic transactions or similar
business activity, as “non-commercial.” (481) This is consistent with the ordinary meaning
of the term “commercial,” while leaving Contracting States able to adopt more nuanced
and tailored rules of non​arbitrability with regard to particular types of commercial
disputes that implicate local public policies.

[2] National Arbitration Legislation

Like leading international conventions in the field, national arbitration statutes are
frequently limited to “commercial” matters. These limitations have, however, been
interpreted in the most liberal fashion and serve again more to emphasize the breadth of
the international arbitral process than to limit it.

[a] UNCITRAL Model Law

Article 1(1) of the UNCITRAL Model Law limits the Law’s scope to “international
commercial arbitration.” (482) Article 1(1) does not define the term “commercial,” but the
Law’s drafters included a footnote to the text of the legislation which provides important
guidance. It reads:
“The term ‘commercial’ should be given a wide interpretation so as to cover
matters arising from all relationships of a commercial nature, whether
contractual or not. Relationships of a commercial nature include, but are not
limited to, the following transactions: any trade transaction for the supply or
exchange of goods or services; distribution agreement; commercial
representation or agency; factoring; leasing; construction of works; consulting;
engineering; licensing; investment; financing; banking; insurance; exploitation
agreement or concession; joint venture and other forms of industrial or
business cooperation; carriage of goods or passengers by air, sea, rail or road.”
(483)

This explanation was not included formally as part of the text of the Model Law itself, but
nonetheless represents authoritative guidance as to the intended scope of the term
“commercial,” as used in the Model Law. (484)
The footnote’s interpretation contains what may appear to be tautologies (e.g.,
“commercial” means “all relationships of a commercial nature”). Nonetheless, the
explanation confirms that the term “commercial” has an extremely broad scope,
extending to all forms of trade, investment, finance and services. (485) Among other
things, the term applies without regard to the nature or form of the parties’ claims and
looks only to the character of their underlying transaction or conduct. (486) It also
applies based on the “nature” of the parties’ underlying relationship, rather than its
“purpose,” which provides clarity sometimes lacking in state or sovereign immunity
settings. (487)
Some states that have implemented the Model Law have adopted the drafters’
explanatory footnote as statutory language. (488) Other states have either omitted any
definition of “commercial” in their enactment of the Model Law (489) or have referred to
“international trade” or “foreign trade” in defining the scope of national legislation. (490)
Regardless of the statutory language adopted in particular jurisdictions, national courts
have interpreted the Model Law’s definition of “commercial” broadly. (491)
Despite its breadth, the Model Law’s footnote omits express reference to certain types of
transactions, including specifically consumer contracts and employment contracts. (492)
Equally, the Model Law’s definition refers, albeit unclearly, to “trade” transactions,
arguably connoting involvement by traders or merchants, as distinguished from
consumers or employees. (493)
Nonetheless, the Model Law’s list of examples of commercial relations is non-exclusive
(“include, but are not limited to”), making it difficult to draw conclusions from the
exclusion of particular types of transaction from the Law’s footnote. (494) It is also
noteworthy, that the Model Law’s footnote extends expressly to “carriage of …
passengers” and “consulting,” which very arguably include at least certain consumer or

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 employment relations – raising the question why other types of consumer and
employment relations are any less “commercial” or more appropriately excluded
entirely from the Model Law’s coverage. (495) The better view, therefore, is that the Model
Law includes within its coverage both consumer and employment matters, subject to any
specific nonarbitrability rules adopted in particular states pursuant to Article 1(5) of the
Law. (496)
There are contrary decisions in Model Law jurisdictions, but they are difficult to reconcile
with the text of Article 1(5)’s footnote and the objectives of the Model Law. (497) They are
also difficult to reconcile with the historical treatment of the term “commercial” in the
Geneva Protocol and the treatment of the “commercial” reservation under the New York
Convention, (498) both of which are relevant to interpretation of the Model Law.

[b] U.S. Federal Arbitration Act

In jurisdictions that have not adopted the Model Law, national arbitration legislation and
judicial decisions confirm the trend towards expansive definitions of “commercial”
relationships. In the United States, §2 of the FAA is limited to arbitration agreements in
“transaction[s] involving commerce.” (499) U.S. courts historically interpreted this
language broadly, extending the domestic FAA to arbitration agreements arising in a wide
range of settings, (500) including agreements in heavily regulated industries. (501)
Among other things, U.S. judicial decisions have held that both employment (502) and
consumer (503) contracts constitute “commerce” within the meaning of the FAA. As
discussed elsewhere, the FAA contains exceptions for certain categories of interstate
transportation workers (seamen, rail workers). (504) These exceptions have been narrowly
interpreted in both domestic (505) and international (506) cases. The very existence of
these exceptions confirms, however, that the FAA is in principle applicable to
employment relations.
The FAA’s second chapter, which applies to arbitration agreements subject to the New
York Convention, does not contain a separate definition of (or requirement to satisfy) the
term “commercial.” (507) U.S. courts have held that Chapter 2 of the FAA instead simply
incorporates the Convention’s definition of “commercial,” which, as discussed above, has
been interpreted broadly. (508)

[c] National Arbitration Legislation Omitting Any “Commercial” Relationship Requirement

In some European states, an even more expansive approach is taken to the “commercial”
relationship requirement than in the United States. French judicial decisions have
repeatedly held that domestic distinctions between “commercial” and “non-commercial”
matters, which existed under previous French arbitration legislation, (509) were
inapplicable in international arbitration and that there is no “commercial” requirement
or limitation in the international context. (510) In international arbitration, French courts
made clear that international arbitration agreements are presumptively valid even in
contracts not involving merchants. (511)
A number of other states omit a “commercial” relationship requirement, instead
adopting less demanding limitations. The English Arbitration Act, 1996, omits any
jurisdictional requirement based on the existence of a “commercial” relationship and
applies to all arbitration agreements. (512) Germany also omitted the Model Law’s
“commercial” relationship requirement, adopting only a general nonarbitrability
exception, requiring that arbitration agreements concern “claims involving an economic
interest.” (513) Similarly, Italian arbitration legislation does not make any reference to
“commercial” disputes, and instead allows parties to submit any disputes to arbitration
“provided the subject matter does not concern rights which may not be disposed of,
except in case of express prohibition by law.” (514) Other national arbitration statutes are
similar. (515)
The basic purpose of these various statutory regimes is to limit objections to the
enforceability of arbitration agreements to generally-applicable rules of substantive
validity (516) or the nonarbitrability doctrine, (517) rather than adopting a “commercial”
relationship requirement or permitting it to be used for such purposes. As discussed
above, this reflects sound policy and is also the better interpretation of the New York
Convention. (518)

[d] National Arbitration Legislation Imposing Strict “Commercial” Relationship

Requirements

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 There are exceptions to these expansive definitions of “commercial” (or the
abandonment of any commercial relationship requirement). In 1987, the Chinese
Supreme People’s Court produced a circular setting forth an interpretation of
“commercial” arbitrations, which excluded “arbitration between a foreign investor and
the host country.” (519) Likewise, as noted above, an Indian court held that agreements
concerning the transfer of technology were not “commercial” under Indian law, (520) while
a Tunisian court held that a contract for the architectural design in a town-planning
program was not “commercial.” (521) One Canadian court has also held that at least
certain employment relations are not “commercial.” (522)
As also discussed above, these decisions are retrograde and fail to give effect to
contemporary conceptions of “commercial” or, properly understood, Contracting States’
obligations under the New York Convention. They typically reflect parochial efforts to
benefit local business or other interests, and ignore the true intent of national arbitration
legislation and international arbitration conventions. Insofar as states wish to further
specific local public policies with regard to particular matters, the appropriate course is
through a more nuanced, tailored use of the nonarbitrability doctrine, rather than a
blanket categorization of particular matters as “non-commercial.”

[e] Future Directions: “Commercial” Requirement in National Arbitration Legislation

Despite isolated decisions adopting narrow definitions of what constitutes “commercial,”
the clear trend of national arbitration legislation and judicial decisions is towards either
an expansive definition of the term “commercial” or the omission of any “commercial”
relationship requirement. All forms of trade, investment, financing, provision of services
or goods, joint cooperation, insurance, research, exploration or development, and similar
economic, industrial, or other profit-making enterprise are covered by the term
“commercial”; this includes both relationships between purely private parties and
relationships between private parties and states or state entities. Historic distinctions,
reflecting local statutory rules concerning commercial courts or codes, have been
abandoned, in favor of more liberal, realistic definitions of the term “commercial.” These
expansive definitions properly serve to effectuate the pro-arbitration objectives of both
international arbitration conventions and national legislation, extending their
enforcement regimes and procedural protections to virtually all consensual arbitration
agreements involving business or economic interests or activities. (523)
It is relevant, but not decisive, in defining the term “commercial” in national arbitration
legislation to consider the definition of “commercial” in other international contexts. One
arguable analogy involves foreign state (or sovereign) immunity. (524) Under most
international instruments and national state immunity legislation, foreign states are
denied immunity in certain “commercial” activities. (525) These definitions of
“commercial” vary, but generally include any form of profit-making or contractual
activity. (526)
Importantly, however, the definitions that are appropriate for ascertaining the scope of
state or sovereign jurisdictional immunity in national courts should not be decisive for
interpreting the scope of the New York Convention, the UNCITRAL Model Law, or other
arbitration legislation. The proper application of the Convention and the Model Law
involves different considerations and policies than do questions of state jurisdictional
immunity. While definitions of “commercial” from the state immunity context provide a
reference point, more expansive policies (of facilitating a consensual dispute resolution
process) and fewer concerns (regarding state sovereignty from non-consensual national
court proceedings) are at work in the arbitration context.

[C] “International” or “Foreign” Arbitration Agreements

As noted above, most international arbitration conventions apply only to arbitration
agreements that have some sort of “foreign” or “international” connection, and not to
purely domestic agreements. (527) The same is true under many national legal regimes,
where “international” or “foreign” arbitration agreements are often subject to distinct
legislative and/or judicial rules (distinguishable from those applicable to domestic
arbitration agreements). (528) This is consistent with the purpose of both types of
instruments, which is to facilitate the international arbitral process, without necessarily
disturbing local regulation of purely domestic arbitration matters.
[1] International Arbitration Agreements

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 [a] New York Convention
The Geneva Protocol was expressly limited to agreements to arbitrate between parties
that were nationals of different Contracting States. (529) This was the sole criterion for
“internationality”: other agreements to arbitrate, even if they involved classic cross-
border international trade or investment, were not subject to the Protocol.
In contrast, as noted above, the text of Article II of the New York Convention does not
expressly address the categories of arbitration agreements which are subject to the
Convention. Instead, the Convention’s text only addresses what arbitral awards are
entitled to the treaty’s protections. (530) As a consequence, the definition of those
arbitration agreements that are within the scope of the New York Convention must be
ascertained by implication, either by reference to the Convention’s treatment of awards
or otherwise. In these circumstances, there are unfortunately several possible
interpretations that may be adopted. The analysis of these permutations can be
frustratingly complex, but, properly understood, ultimately produces a simple, sensible
result.

[i] “International” Arbitration Agreements Under New York Convention

As discussed below, by virtue of Article I(1), the New York Convention is applicable to
specified categories of “foreign” or “non-domestic” awards. (531) Despite this, the better
view is that the Convention is more broadly applicable to a wider range of arbitration
agreements, and is not limited by the Convention’s application to a specified category of
“foreign” or “non-domestic” awards. (532) Under this view, the Convention applies either
to all arbitration agreements, or, more satisfactorily, all “international” arbitration
agreements.
There is no text in the Convention that specifically mandates (or forecloses) such a
definition. Nonetheless, a compelling argument can be made that the Convention by its
nature deals with “international” arbitration agreements – these, rather than domestic
arbitration agreements, being the obvious focus of the Convention’s drafters. Equally, as
discussed below, neither the Convention’s language nor purposes permit transposing its
provisions regarding “foreign” and “non-domestic” awards to arbitration agreements.
(533)
Under this view, national courts have the task of formulating an appropriate uniform
definition of such “international” arbitration agreements based on the Convention’s
structure and objectives. As discussed below, this analysis results in a straightforward,
liberal definition of “international” arbitration agreements to which the Convention
applies – as under the UNCITRAL Model Law, presumptively including all agreements
involving multinational parties, transnational trade, investment, or other activities,
and/or foreign arbitral seats. (534) Before considering this result in greater detail, it is
useful to outline other possible interpretations of the Convention.

[ii] “Foreign” and “Non-Domestic” Arbitration Agreements Under New York Convention
The literal text of Article I(1) would arguably suggest that the New York Convention’s
“foreign” or “non-domestic” award requirement (535) applies, albeit by analogy, to
arbitration agreements. Under this interpretation, the Convention applies to those
arbitration agreements that will be capable of producing a “foreign” or “non-domestic”
award within the meaning of Article I(1) of the Convention, but not to other arbitration
agreements. (536)

(1) “Foreign” or “Non-Domestic” Awards

As discussed below, the Convention does not apply generally to “international” arbitral
awards. Instead, Article I provides that the Convention is applicable only to awards that
are either: (i) “made” in a state other than the Contracting State where recognition or
enforcement is sought, or (ii) “not considered as domestic awards” under the law of the
Contracting State where enforcement is sought. (537) These two criteria provide separate
and independent bases for concluding that an award is subject to the Convention’s pro-
arbitration enforcement regime.
(2) “Foreign” Arbitral Awards and Arbitration Agreements
The first of these two criteria is relatively mechanical and, as discussed below, can be
readily applied in the case of awards (e.g., is an award made in the state where litigation
to recognize or enforce the award is pending?). (538) This criterion would also be applied,

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 a good deal less easily, in the context of arbitration agreements (e.g., does the
arbitration agreement provide for arbitration in a state other than the state in which
litigation has arisen?). (539)
Despite this apparent simplicity, a recurrent question applying this standard is whether
the New York Convention applies whenever a court in one Contracting State considers an
arbitration agreement specifying an arbitral seat in another Contracting State, including
particularly where the parties to the agreement are both nationals of the first Contracting
State (e.g., parties from State A agree to arbitrate in State B). Some national courts have
apparently held that this question is simple: if an arbitration agreement provides for
arbitration in another Contracting State, then it contemplates a “foreign” award and is
subject to the Convention, regardless of the nationality of the parties or the nature of the
dispute. (540) Thus, even if purely domestic parties agree to arbitrate a purely domestic
dispute in a foreign country, the arbitration agreement is subject to the New York
Convention. This approach would leave determination of an agreement’s “international”
character substantially to the parties’ choice, through their selection of the arbitral seat.
As discussed below, however, other national courts (particularly in the United States)
have been reluctant to apply the Convention to arbitration agreements between two
nationals of the same state concerning matters purely domestic to that state, even where
the arbitral seat is outside the state in question (i.e., two parties, both from State A, agree
to arbitrate a domestic dispute involving actions occurring only in State A, under State
A’s law, in State B). (541) These courts have reasoned that the Convention was not
intended to apply to purely domestic matters, involving only local parties. (542)
This interpretation is derived from U.S. legislation implementing the Convention, which
provides that an arbitration agreement or award arising out of a relationship between
U.S. citizens will not be subject to the Convention unless “that relationship involves
property located abroad, envisages performance or enforcement abroad, or has some
other reasonable relation with one or more foreign states.” (543) Relying on §202, U.S.
courts have refused to apply the Convention absent a “reasonable relation” between the
parties’ agreement and one or more foreign states; that includes refusals to apply the
Convention to arbitration agreements providing for arbitration outside the United States
where the parties are only U.S. citizens and their relationship is wholly domestic. (544)
Conversely, an application of Article I(1)’s first criterion (i.e., a “foreign” award) would not
provide any basis for concluding that the Convention applies, in the national courts of a
particular Contracting State, to an arbitration agreement providing for arbitration within
that same Contracting State (e.g., if parties from States A and B engaged in a cross-border
sale transaction agree to arbitrate in State C, their agreement to arbitrate would be
“foreign” in States A and B, but would not be “foreign” in State C). Regardless of the
“international” character of the parties or the underlying contract or transaction, the
relevant point under this criterion is that the arbitration will not, in the courts of the
Contracting State where the arbitral seat is located, produce a “foreign award.” (545) By
analogy, the arbitration agreement that produces such an award would therefore not be
subject to the Convention under this criterion. (546)

(3) “Non-Domestic” Arbitral Awards and Arbitration Agreements

The second criterion for determining the applicability of the Convention is more (and
frustratingly) complex, even in the context of arbitral awards. This part of Article I(1)
refers to awards that are considered “non-domestic” under national laws in the
Contracting State where enforcement is sought. (547) This formula raises significant
interpretative issues (although, in practice, it is seldom applicable (548) ).
As discussed below, the better view of the Convention’s treatment of awards is that
Article I(1)’s reference to “arbitral awards not considered as domestic awards in the State
where their recognition and enforcement are sought” requires consideration of national
law. (549) That is required by the reference to awards that are not “considered as”
domestic awards in the enforcing state, which almost inevitably mandates an inquiry into
the law of that state. (550) Accordingly, as discussed in greater detail below, the category
of what awards are subject to the Convention according to Article I(1)’s “non-domestic”
criteria will vary depending on definitions under national law in particular Contracting
States. (551)
The same analysis would apply to arbitration agreements, where the scope of the
Convention would depend on individual Contracting States’ definitions of “non-domestic”
awards, because it would be the arbitration agreements that produce those “non-

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 domestic” awards which are subject to the Convention. (552) The definitions of “non-
domestic” awards under national law – and hence, the derivative scope of Article I(1)’s
application to arbitration agreements, if this analysis were adopted – are discussed
below. (553)
[iii] Future Directions: “International” Arbitration Agreements Under New York Convention
The better view of the foregoing issues is that the New York Convention’s provisions
regarding arbitration agreements are not limited to those agreements that produce
“foreign” and “non-domestic” awards, but instead extend to all “international” arbitration
agreements. In practice, the most significant additional category of arbitration
agreements that would be encompassed by this definition of “international arbitration
agreements,” but not by arbitration agreements that produced “foreign” or “non-
domestic” awards, would be international agreements providing for arbitration in the
state where recognition and enforcement of the arbitration agreement is sought (e.g.,
parties from States A and B agree to arbitrate in State C, with litigation concerning the
arbitration agreement being commenced in State C). The inclusion of this category of
agreements in the Convention’s coverage would materially advance the Convention’s
purposes and is the better reading of its text.
The omission of any linkage between arbitral awards and arbitration agreements from
the text of the Convention is significant in this regard: although Article I(1) of the
Convention defines those awards to which the Convention applies, this definition does
not extend to arbitration agreements, nor is there any indication that Article I(1)’s
definition is incorporated into the definition of arbitration agreements, either expressly
or impliedly. (554) Imposing such a restriction on the Convention’s scope requires
implying a material limitation into the Convention’s text – which could readily have been
accomplished as a drafting matter, but was not.
Rather, the Convention adopts what has been correctly described as a “sweeping
approach” towards arbitration agreements, placing no literal limitation on those
agreements that are subject to its pro-arbitration regime. (555) Simply put, nothing in the
Convention’s text either requires or permits limiting its scope to arbitration agreements
that produce “foreign” or “non-domestic” arbitral awards.
Equally important, implying such restriction of the Convention to agreements producing
“foreign” or “non-domestic” awards would not advance, and would instead materially
contradict, the Convention’s purposes, by excluding from its pro-arbitration regime a
very significant category of matters (e.g., litigations concerning an international
arbitration agreement in the courts of the arbitral seat). This would have the potential to
frustrate the Convention’s fundamental objectives of facilitating the use and recognition
of arbitration agreements in international commercial matters. (556) Implying a
restriction of this nature on the Convention’s scope, which contradicts the Convention’s
purposes, as well as its language, is unjustified.
This interpretation is also consistent with the treatment of arbitration agreements under
the Geneva Protocol, from which the New York Convention’s provisions regarding
arbitration agreements were directly derived. (557) The Protocol provided for the validity
of arbitration agreements between nationals of different Contracting States, essentially
adopting a nationality-based definition of “international” arbitration agreements. (558)
Limiting the New York Convention to arbitration agreements that would produce “foreign”
or “non-domestic” awards would be a retrograde step, that would materially reduce the
protections for international arbitration agreements under the Convention from those
under the Protocol. It is very difficult to conceive that this is what the Convention’s
drafters intended, particularly given that one of their fundamental objectives was the
exact opposite. (559)
The better view is that the scope of the textually unlimited Article II, as applied to
arbitration agreements, should be defined by reference to the Convention’s purposes.
That is, Article II(1) and II(3) should not be interpreted to apply to purely domestic
arbitration agreements, and should instead apply to “international” arbitration
agreements. (560) The precise characteristics of an “international” arbitration agreement
include reference to the parties’ nationalities and domiciles (i.e., all arbitration
agreements between parties of different nationalities or domiciles are “international”)
and the location(s) of their contemplated business activities (i.e., all agreements
involving transborder or foreign activities are “international”). (561) This is consistent with
the Convention’s purposes of encouraging the use of arbitration in international trade

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 and investment, while not intruding upon purely domestic matters. (562) As discussed
below, most national arbitration regimes properly adopt a similarly liberal definition of
“international” arbitration agreements in these circumstances. (563)

[b] European Convention

Unlike the New York Convention, the European Convention attempts to provide a
definition of “international” arbitration agreements, to which the Convention applies.
Article I(1)(a) of the Convention provides:

“This Convention shall apply: (a) to arbitration agreements concluded for the
purpose of settling disputes arising from international trade between physical
or legal persons having, when concluding the agreement, their habitual place
of residence or their seat in different Contracting States ….” (564)

This definition improves on the New York Convention’s silence on this subject, but it was
not well-considered. (565) The definition combines two requirements – that is, that an
agreement be “for the purpose of settling disputes arising from international trade,” and
that the agreement be made between persons with their seats “in different Contracting
States.” Requiring that both of these criteria be satisfied in all cases imposes
unnecessary limitations on the scope of the Convention. For example, where two
companies with their seats in State A (but with extensive international operations) enter
into a cross-border sales transaction or a joint venture in a foreign state, it is very
difficult to conceive why the Convention should not apply to their arbitration agreement.
Nonetheless, that is the effect of literal application of Article I(1)(a)’s criteria. (566)

[c] Inter-American Convention

The Inter-American Convention is applicable (according to its title and preamble) to
“international commercial arbitration.” (567) The Convention thus establishes a uniform
concept of “international,” but does not further define this phrase. That leaves national
courts and arbitral tribunals the responsibility to define “international,” based upon the
Convention’s purposes. The appropriate definition of the term should parallel that under
the New York Convention (as discussed above). (568)

[2] National Arbitration Legislation

For the most part, national legislatures and judicial decisions have reached satisfying
definitions of “international.” These definitions are by no means uniform, but they reflect
an expansive conception of “international” arbitration agreements that generally ensures
the application of pro-arbitration enforcement regimes to any arbitration agreements
involving either cross-border trade and finance or transactions between parties of
different nationalities or domiciles. These definitions also inform, and are informed by,
the interpretation of the New York Convention and its applicability to “international”
arbitration agreements. (569)

[a] UNCITRAL Model Law

The UNCITRAL Model Law contains a detailed definition of “international” arbitration,
which is indirectly applicable to arbitration agreements. Article 1(3) of the Model Law
provides:

“An arbitration is international if (a) the parties to an arbitration agreement

have, at the time of the conclusion of that agreement, their places of business
in different States; or (b) one of the following places is situated outside the
State in which the parties have their places of business: (i) the place of
arbitration if determined in, or pursuant to, the arbitration agreement; (ii) any
place where a substantial part of the obligations of the commercial
relationship is to be performed or the place with which the subject-matter of
the dispute is most closely connected; or (c) the parties have expressly agreed
that the subject matter of the arbitration agreement relates to more than one
country.” (570)
Under Article 1(2) of the Model Law, (571) an international arbitration agreement is
subject to the most significant aspect of the Law’s pro-enforcement regime – Article 8’s
rule of presumptive validity and specific enforceability of arbitration agreements –
regardless whether the arbitral seat is located within the judicial enforcement forum or
abroad. Notably, this is a departure from the general structure of the Model Law, most of

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 whose provisions apply only to arbitrations seated on national territory. (572)
Exceptionally, Article 1(2) makes the Model Law’s basic provision for enforcement of
arbitration agreements applicable to agreements providing for a foreign arbitral seat.
(573) The UNCITRAL Secretariat’s Explanatory Note on the Model Law emphasized the
importance of this rule, noting that Article 8(1) “is not restricted to agreements providing
for arbitration in that State and, thus, helps to give universal recognition and effect to
international commercial arbitration agreements.” (574)
Most states that have adopted the Model Law have incorporated the definition contained
in Article 1(3), although a few statutes have modified the language (without apparent
substantive effect). (575) A few other states have limited the scope of “international”
arbitration as compared to the Model Law, (576) while others have eliminated the
requirement altogether (making the local enactment of the Model Law applicable to all
arbitrations seated on national territory, without regard to “international” or “domestic”
character). For example, Spain, Germany and Venezuela’s enactment of the UNCITRAL
Model Law, as well as the English Arbitration Act, 1996, deleted provisions limiting the
legislation’s application to “international” arbitrations, extending it to all arbitrations,
whether international or domestic. (577)
Article 1(3) of the Model Law provides an extremely broad definition of “international,”
(578) which has been criticized as overly-expansive. (579) Under its terms, an arbitration
agreement will be “international” if: (a) it is between parties from different states, (580)
or (b) it provides for arbitration outside the state where the parties have their places of
business, (581) or (c) the parties’ underlying commercial relationship provides for
(substantial) performance outside the state where the parties have their places of
business. (582) Moreover, Article 1(3) also separately permits parties to, in effect, contract
into the Model Law by express agreement. (583)
Under the Model Law, an arbitration agreement between nationals of State A, concerning
a local transaction in State A, providing for arbitration in State A, will not be subject to
the Model Law in either State A or other states (absent agreement by the parties under
Article 1(3)(c)). (584) Purely domestic arbitrations of this sort are not international in any
respect and are excluded from the coverage of the Model Law. Thus, some decisions in
Model Law jurisdictions have considered arguments that the Law’s provisions do not
apply to arbitration agreements purely local to a foreign jurisdiction. In one Australian
court’s words:

“At the heart of the application of the Act is the arbitration agreement. But the
Act will not apply to any and every arbitration agreement in the world: an
arbitration agreement between two Ruritanian subjects, made in Ruritania
concerning a Ruritanian dispute and with the conduct of the arbitration in
Ruritania, could hardly be subjected to its provisions.” (585)
Other than this, however, the scope of the Model Law is extremely broad: the definition of
“international” in Article 1(3) is expansive (indeed, arguably too expansive).
The Model Law provides in Article 1(3)(a) that an arbitration agreement will be
international if concluded between nationals of different states. This is sensible. If
parties to an arbitration agreement are from different states, many of the basic purposes
of international arbitration (i.e., providing a neutral dispute resolution mechanism that
overcomes the jurisdictional complexities and risks of local bias of international
litigations (586) ) are implicated and it makes perfect sense to apply the Model Law’s
pro-enforcement provisions. (587) Likewise, the Model Law’s prescription (under Article
1(3)(b)(ii)) that an arbitration agreement will be international if the parties’ contract
concerns performance outside of the state where both parties are located is sensible for
the same reasons.
More controversial is Article 1(3)(b)(i)’s provision that an arbitration agreement will be
international if it provides for an arbitral seat in a state other than that where the parties
are located. (588) Paralleling similar concerns that arise under the New York Convention,
(589) some commentators have questioned whether “a choice made exclusively by the
parties,” concerning the arbitral seat, should suffice to make the Model Law’s pro-
enforcement regime applicable. (590) This criticism is understandable, but overbroad.
There may be cases where two domestic parties agree to arbitrate disputes concerning a
purely domestic transaction abroad, for the purpose of evading local regulatory
requirements; in these instances, Article 1(3)(b)(i) can readily be interpreted as not

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 permitting such circumvention. (591) In other cases, however, there is no reason not to
apply Article 1(3)(b)(i) as drafted.
For example, it is difficult to see why the Model Law should not apply where participants
in a particular industry agree to arbitrate in a foreign arbitral seat with recognized
expertise, experience and neutrality in their market, (592) or where companies with
foreign connections, roots, or affiliations (economic, cultural, linguistic, or historical)
agree to arbitrate in a foreign arbitral seat with comparable cultural and linguistic
affinities. (593) Although it is appropriate to be mindful of the possibility that selection of
a foreign arbitral seat may be a sham, to evade local mandatory law or public policy,
there are many instances where this is not the case and it is inappropriate to discard
legitimate private choices along with illegitimate ones.
Article 1(3)(c) has also been criticized on similar grounds, as permitting parties to “opt-in”
to the Model Law’s internationality definition. (594) Some states that have adopted the
Model Law have therefore omitted Article 1(3)(c) from their definition of international
arbitration. (595)
This criticism is well-grounded. It would be an appropriate policy choice for a national
legislature to permit parties to any arbitration agreement – international or domestic –
to avail themselves of the legal regime set forth in the Model Law. Indeed, as discussed
above, some states have adopted identical legal regimes for both domestic and
international arbitration agreements and arbitrations. (596) Nonetheless, it is
unnecessary and unwise to provide for parties to do this by way of labeling domestic
arbitrations/arbitration agreements as “international.” This produces a lack of
transparency and clarity which does not advance the long-term interests of either
international or domestic arbitration.

[b] U.S. Federal Arbitration Act

In the United States, the definition of “international” arbitration agreements for purposes
of domestic arbitration legislation (the FAA) is bound up with the specific text of the FAA
and the New York Convention. The U.S. approach nonetheless bears important parallels
to developments under the UNCITRAL Model Law. As discussed below, U.S. courts have
held that any arbitration agreement with a “reasonable relation” to one or more foreign
states will be governed by the New York Convention and its U.S. implementing legislation
(Chapter 2 of the FAA), (597) while indicating reluctance to apply the Convention to
agreements exclusively between U.S. nationals, concerning purely domestic U.S.
transactions, to arbitrate in a foreign arbitral seat. (598)
As discussed elsewhere, U.S. federal legislation provides two basic legal regimes for
arbitration: (a) the domestic FAA (Chapter 1), applicable to domestic arbitration
agreements and (residually) to international arbitration agreements not covered by the
New York or Inter-American Conventions; (599) and (b) the “non-domestic” FAA (Chapters 2
and 3), applicable to international arbitration agreements covered by the New York
Convention (Chapter 2) or Inter-American Convention (Chapter 3). (600) This legislation
provides only partial answers to the question of what statutory provisions apply to
particular arbitration agreements, although the statutory framework is capable of being
interpreted to provide a sensible result.

[i] Section 202 of Federal Arbitration Act

Section 202 of the FAA addresses the categories of arbitration agreements that are
governed by the statute’s second, non-domestic chapter. Section 202 provides:

“An arbitration agreement or arbitral award arising out of a legal relationship,

whether contractual or not, which is considered as commercial, including a
transaction, contract, or agreement described in §2 of this title, falls under the
Convention. An agreement or award arising out of such a relationship which is
entirely between citizens of the United States shall be deemed not to fall under
the Convention unless that relationship involves property located abroad,
envisages performance or enforcement abroad, or has some other reasonable
relation with one or more foreign states.” (601)

Section 202 is not, by its literal wording, an affirmative statement of the Convention’s
scope in U.S. courts; rather, §202 is, by its terms, only a negative statement as to when the
Convention will be deemed inapplicable in U.S. courts. (602) Nonetheless, lower U.S.
courts have applied §202’s “reasonable relationship” requirement as an (impliedly)

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 affirmative definition of when the Convention will apply to arbitration agreements and
awards; in so doing, they have assumed that, if an agreement or award has a “reasonable
relation” to one or more foreign states, then it will be subject to the Convention
(regardless where the arbitration is seated). (603) In effect, §202 constitutes the U.S.
definition of the “internationality” of an arbitration agreement, which in turn defines
when the Convention and its U.S. implementing legislation will apply to an arbitration
agreement in U.S. courts.
There are three principal grounds for concluding that an arbitration agreement or
arbitral award has a “reasonable relation” to one or more foreign states: (i) the parties’
nationalities; (ii) the locations of contractual performance, property, employees and
other activities under the parties’ agreement; and (iii) the location of the arbitral seat.
Each one of these grounds may provide an independent basis for concluding that an
arbitration agreement or award is subject to the Convention in U.S. courts; the grounds
may also be considered cumulatively, as contributing to a conclusion that a particular
agreement or award has a reasonable relation with a foreign state (or states).

[ii] Nationalities of Parties

It is clear that §202 contemplates that the parties’ nationalities are relevant to
determining whether an arbitration agreement or arbitral award has a reasonable
relation with a foreign state. The text of §202 refers to agreements that are “entirely
between citizens of the United States,” leaving little question but that the parties’
nationalities or citizenships are relevant to the relationship between their transactions
and foreign states. (604) Consistent with the statutory text, U.S. courts have repeatedly
held that the Convention will apply to arbitration agreements where one or more of the
parties is a non-U.S. national. (605) As discussed below, U.S. courts have reached this
conclusion in cases where non-U.S. parties, or a U.S. party and non-U.S. party, have
agreed to arbitrate with the arbitral seat in the United States. (606) Some U.S. courts
have looked to the parties’ domiciles or principal places of business, rather than their
formal nationality, in applying §202’s “reasonable relation” standard. (607)
[iii] Location of Contractual Performance or Property
It is also clear that §202 provides for consideration of the location of the activities
undertaken in connection with the parties’ underlying contract, including the place of
contractual performance. That is evident from the text of §202, which contemplates
consideration of the extent to which the parties’ relationship “involves property located
abroad, [or] envisages performance or enforcement abroad.” Consistent with that text, U.S.
courts have repeatedly relied upon contractual performance (of the underlying
commercial contract) outside the United States in concluding that the parties’
arbitration agreement or arbitral award was (or was not) subject to the Convention. (608)
Several lower courts have considered whether performance of a contract in international
waters constitutes “performance abroad” within the meaning of the FAA. (609) Better-
reasoned recent decisions hold that the phrase “performance abroad” applies to conduct
in international waters between U.S. and foreign ports. (610)

[iv] Agreements to Arbitrate in United States

It follows from the foregoing that §202 is potentially applicable to agreements to
arbitrate at an arbitral seat in the United States, including agreements made solely
between either U.S. nationals or foreign nationals, provided only that the parties’
agreement has a “reasonable relationship” to a foreign state. Applying §202, U.S. courts
have held that the New York Convention may apply to international arbitrations seated in
the United States, including arbitrations solely between U.S. nationals, as well as
arbitrations between parties of other nationalities – in all cases provided that the
parties’ transaction has a “reasonable relation” to one or more foreign States.
Applying this analysis, in Lander Co., Inc. v. MMP Investments, Inc., (611) the Court of
Appeals held that the Convention applied to an arbitral award where the dispute was
between two U.S. parties and where the arbitration took place in the United States. The
court found that the parties’ underlying commercial contract to distribute products in
Poland fell “squarely within the inclusion [sic] and outside the exclusion” of §202. The
court explored the language of §202, explaining:

“Congress may have believed that confining enforcement under the

Convention to awards rendered abroad would drive away international

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 arbitration business from New York. Or it may have been seeking to secure the
Convention’s benefits, on the basis of reciprocity, to American businesses
seeking judicial enforcement of foreign arbitration awards in the countries in
which the award was made. Or it may simply have wanted to simplify the
procedures governing the foreign activities of American firms, since American
firms doing business abroad are bound to have contracts with foreign firms as
well as other American firms. Whatever Congress’s precise thinking on the
matter, it spoke clearly.” (612)

Similarly, another U.S. appellate court categorized an award made in the United States
as “non-domestic,” and subject to the Convention under §202 of the FAA, because one of
the parties was German. The court reasoned “that arbitration agreements and awards ‘not
considered as domestic’ in the United States are those agreements and awards which are
subject to the Convention not because they were made abroad, but because they were
made within the legal framework of another country,” (613) apparently concluding that
the application of foreign substantive law to the parties’ contract satisfied Section 202.
The court went on to note its preference for “this broad construction because it is more in
line with the intended purpose of the [New York Convention], which was entered into to
encourage the recognition and enforcement of international arbitration awards.” (614)
Finally, in Bergesen v. Joseph Muller Corp., (615) the court held that the New York
Convention was applicable to an award made in New York arising from an arbitration of a
dispute between two foreign parties:
“We adopt the view that awards ‘not considered as domestic’ denotes awards
which are subject to the Convention not because made abroad, but because
made within the legal framework of another country, e.g., pronounced in
accordance with foreign law or involving parties domiciled or having their
principal place of business outside the enforcing jurisdiction. … We prefer this
broader construction because it is more in line with the intended purpose of
the [New York Convention], which was entered into to encourage the
recognition and enforcement of international arbitration awards. … Applying
that purpose to this case involving two foreign entities leads to the conclusion
that this award is not domestic.” (616)

Other U.S. decisions adopt similar analyses of §202’s “reasonable relationship” standard
and the Convention. (617) These holdings are fully applicable to agreements to arbitrate
in the United States between U.S. nationals, as well as to arbitral awards made in the
United States.

[v] Agreements to Arbitrate Outside United States

Conversely, §202 is also applicable to agreements to arbitrate outside the United States,
including agreements solely between either U.S. or foreign nationals, again provided only
that the parties’ transaction has a “reasonable relationship” to a foreign state. In this
regard, it is clear that §202 encompasses virtually all agreements to arbitrate (in a non-
U.S. seat or a U.S. seat) between non-U.S. nationals or between U.S. and non-U.S.
nationals. (618)
Agreements only between U.S. nationals (and not involving any non-U.S. nationals) to
arbitrate abroad are potentially more complex under the FAA. It is fairly clear that §202’s
reference to a “relationship” that “envisages performance or enforcement abroad” is a
reference to the parties’ underlying commercial contract or corporate relationship, not to
their arbitration agreement. That is evident from the first sentence of §202, which refers
to “[a]n arbitration agreement or arbitral award arising out of a legal relationship”; that
reference leaves little doubt that the “relationship” which must “envisage[] performance
or enforcement abroad” is the parties’ underlying commercial relationship, not their
arbitration agreement. Thus, contrary to the mistaken suggestions of some authorities,
(619) the fact that an arbitration agreement specifies a foreign seat does not
automatically satisfy §202.
Nonetheless, there are circumstances in which §202 will apply to agreements to arbitrate
abroad, between U.S. nationals, where the underlying transaction has minimal
connections with any foreign state. Section 202 elaborates on the “reasonable
relationship” requirement by specifying that contracts involving property or performance
abroad have a reasonable relationship with a foreign state, but does not limit the
definition of agreements subject to Chapter 2 of the FAA to such contracts. Rather, §202

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 goes on to encompass any “relationship” that has “some other reasonable relation with
one or more foreign states”. (620) As a matter of statutory interpretation, a “reasonable
relationship” to a foreign state must necessarily include things other than merely the
existence of property or performance abroad (which are separately mentioned in §202).
It would therefore appear that the “reasonable relationship” standard could in principle
be satisfied by U.S. nationals agreeing to arbitrate a domestic dispute (not concerning
either property or performance overseas) abroad, at least where this was not an effort to
circumvent local regulatory protections. For example, if a foreign arbitral seat is selected
because of historical, industry, or legal reasons (e.g., London, Singapore, or Hamburg for
insurance or maritime matters), (621) this should be sufficient to satisfy §202’s
“reasonable relationship” requirement.
This is confirmed by the fact that §202’s “reasonable relationship” requirement is derived
from §1-105 of the UCC. (622) As discussed elsewhere, §1-105 generally permits parties to
a transaction to select a neutral foreign law which has no connection to the parties’
transaction. (623) Section 202 should similarly be interpreted as extending the FAA’s
second chapter to cases where domestic U.S. parties have selected a neutral arbitral
seat (at least where the seat has particular expertise or historical experience). (624) U.S.
judicial decisions are generally consistent with this. (625)
By its terms, §202 nonetheless excludes some arbitration agreements providing for
arbitrations that are seated outside the United States, at least where the arbitrations
involve only U.S. parties. The legislative history of §202 explains:

“The second sentence of §202 is intended to make it clear that an agreement

or award arising out of a legal relationship exclusively between citizens of the
United States is not enforceable under the Convention in U.S. Courts unless it has
a reasonable relation with a foreign state.” (626)

The stated legislative purpose of §202’s exclusion was therefore very clearly to avoid the
possible application in U.S. courts of the FAA’s second chapter (and the New York
Convention) to arbitration agreements and awards concerning at least some purely local
disputes between U.S. nationals. (627) This legislative purpose and statutory limitation
are consistent with the criticism, discussed above, of Article 1(3)(b)(i) of the UNCITRAL
Model Law for its extension of the Model Law to agreements by two locals to arbitrate a
purely local dispute abroad. (628)
As contemplated by the text and legislative history of §202, U.S. courts have been
reluctant to apply the New York Convention and its implementing legislation to
agreements to arbitrate purely domestic disputes between U.S. nationals. Thus, one U.S.
lower court held that the Convention was not applicable to an agreement to arbitrate in
Switzerland between a U.S. company and its U.S. employee, where the parties’ underlying
employment contract was to be entirely performed in the United States. (629) Several
other lower U.S. courts have reached similar conclusions about agreements between U.S.
citizens to arbitrate purely local disputes outside the United States. (630) In contrast, as
discussed above, where U.S. parties agree to arbitrate a foreign or international
transaction abroad (or at home), §202 clearly makes the Convention applicable; (631)
only agreements to arbitrate purely domestic U.S. disputes may be denied, by some U.S.
courts, protection under §202 and the Convention.

[vi] Consistency of §202 with New York Convention

The rationale of the U.S. decisions discussed above, and the text of §202, could not
readily be squared with a (mistaken) reading of the Convention as applying only to
arbitration agreements that produce “foreign” awards. (632) Under this reading, the
Convention would not make any exception for foreign awards which are rendered in
disputes between local residents or for “foreign” awards lacking a “reasonable
relationship” to foreign matters; all such awards fall within the literal terms of the
Convention’s definition of foreign awards and appear to be subject to its coverage. Thus,
if the Convention were (wrongly) interpreted as applying to arbitration agreements that
produce “foreign” awards, (633) then the foregoing U.S. decisions would be very difficult
to defend: they exclude from the Convention’s coverage a category of arbitration
agreements that would be subject to its express coverage, by virtue of producing foreign
arbitral awards.
It is understandable that there are national legislative concerns about circumvention of
domestic regulations, by means of agreements to arbitrate purely domestic disputes

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 abroad (as under the Model Law). Nonetheless, the Convention’s treatment of foreign
awards does not permit simply exempting all such awards from the scope of the
Convention; rather, as discussed below, some more nuanced and precise analysis into the
circumvention of local public policies would be required. That approach could refuse to
give effect to arbitral awards and (less clearly) arbitration agreements between local
residents aimed at circumventing national public policies or mandatory laws, but would
not simply exclude all foreign awards between local residents from the Convention’s
scope. (634)
On the other hand, if the Convention were interpreted as applying to “international”
arbitration agreements, as proposed above, (635) then the foregoing line of U.S. decisions
could be defended. Although such a result is not compelled, the definition of an
“international” arbitration agreement could be applied to exclude agreements between
local nationals or residents to arbitrate purely domestic disputes even if the arbitrations
are conducted abroad. (636)
Finally, even if the New York Convention, and Chapter 2 of the FAA, do not apply to an
agreement between U.S. parties specifying a foreign seat, it is important to note that §§3
and 4 of the FAA still apply. (637) In principle, these provisions would also provide for the
recognition and enforcement of most arbitration agreements under a relatively pro-
arbitration legislative regime. (638) That regime is somewhat less favorable than the
FAA’s second chapter and the New York Convention, but it would nonetheless generally
provide an adequate basis for enforcing an agreement to arbitrate.

[c] France
French law has a distinctive approach to the definition of “international” arbitration,
which has been influential in other Francophone states. (639) Like earlier versions of
French arbitration legislation, (640) Article 1504 of the revised French Code of Civil
Procedure provides that: “an arbitration is international when international trade
interests are at stake.” (641) Applying this statutory definition (or its predecessor), French
courts have focused exclusively on the “objective” elements of a transaction or
relationship, inquiring whether these elements implicate “international trade.” (642)
Examples of agreements satisfying Article 1504’s definition classically include cross-
border sale of goods, freight deliveries, or lending arrangements. (643) In the words of
one leading French judicial decision, addressing a predecessor version of Article 1504:

“the international nature of an arbitration must be determined according to

the economic reality of the process during which it arises; in this respect, it is
sufficient if the economic transaction should entail a transfer of goods,
services or funds across national boundaries, while the nationality of the
parties, the law applicable to the contract or the arbitration, and the place of
arbitration are irrelevant.” (644)

Another French authority reasons that the question whether an arbitration is

international or domestic is “determined by the nature of the economic relationships
from which the dispute arose” and “does not depend on the parties’ will.” (645)
These declarations have the advantage of clarity, but the disadvantage of being
misconceived. Ignoring the nationality of the parties, and insisting on some element of
crossing national borders, only imperfectly serves the purposes of the international
arbitral process or the legislation regulating that process. For example, if two French
parties (or a French and a foreign party) agree to participate in a joint venture in Egypt,
or to construct a plant in China, or to develop real estate in Florida, their undertaking
must surely be considered international – even where the goods, materials, capital and
know-how for the project are sourced entirely abroad. Equally, the basic purposes of
international arbitration (i.e., providing an efficient, neutral decision-maker (646) ) are
fully applicable in each instance. Yet, under the “objective” approach to Article 1504 (and
its predecessors) favored by French courts, it is exceedingly difficult to reach this
interpretative result, because in none of the cases is there any meaningful transfer across
national boundaries.
More fundamentally, the French approach ignores the fact that the nationality of the
parties is a consideration that is highly relevant to the basic purpose of the international
arbitral process. It is precisely because parties do not have confidence in, and familiarity
with, the courts of the home jurisdiction of their counterparty that they enter into
international arbitration agreements. (647) The French approach of ignoring the parties’

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 nationalities is therefore not only contrary to the approach taken in the UNCITRAL Model
Law (648) and FAA, (649) as well as the European Convention (650) and Geneva Protocol,
(651) but inconsistent with one of the basic purposes of the international arbitral process.

[d] English Arbitration Act

The English Arbitration Act, 1996, provides one of the least complex approaches to the
legal regime governing international arbitration agreements. The Act does so by treating
both domestic and international arbitration agreements the same; both categories of
arbitration agreement are subject to the Act. (652) In so doing, the Act deliberately
departed from the UNCITRAL Model Law, which was limited to “international” arbitration
agreements.
The English Arbitration Act does, however, adopt different approaches to arbitrations
seated in England and those seated abroad. (653) In particular, like the Model Law, most
of the Act’s provisions apply only to arbitration agreements providing for arbitrations
seated in England (and not arbitrations seated abroad). (654) At the same time, basic
provisions regarding the presumptive validity of arbitration agreements and the specific
enforceability of such agreements (by means of a stay of litigation) (655) are applicable
to arbitration agreements regardless of the arbitral seat. (656) Like the Model Law, this
approach makes the fundamental requirement that arbitration agreements be
recognized and specifically enforced applicable regardless of the arbitral seat, while
limiting other provisions (regarding competence–competence and separability) to
agreements to arbitrate in England.

[e] Swiss Law on Private International Law

Article 176 of the Swiss Law on Private International Law provides that the Act’s provisions
are limited to cases where “at least one of the parties was neither domiciled nor resident
in Switzerland at the time of the conclusion of the arbitration agreement.” (657) The
nationality of the parties is irrelevant for the purposes of this provision, which considers
only issues of domicile and residence. (658) Additionally, and importantly, the
arbitration provisions of the Swiss Law on Private International Law apply only to
arbitration agreements where the arbitral seat is in Switzerland. (659) Where the arbitral
seat is abroad, the New York Convention is applicable to arbitration agreements in Swiss
courts (but not otherwise). (660)

[f] Other National Arbitration Legislation

Other nations adopt a variety of different approaches to the definition of “international”
arbitration agreements. (661) Many, but not all, of these approaches involve some
consideration of the parties’ nationalities.
Italy’s former arbitration statute provided that an arbitration agreement is international
if “at least one of the parties is resident or has its de facto headquarters abroad, or where
a substantial part of the relationship from which the dispute has arisen must be
performed abroad.” (662) To the same effect, Romania has adopted legislation providing
that “an arbitration taking place in Romania shall be considered international if it has
arisen out of a private law relation with a foreign element.” (663) Alternatively, the
Portuguese Law on Voluntary Arbitration provides that “[i]nternational arbitration is
understood as a procedure that puts international trade interests at stake.” (664)
Other legislation adopts a cumulative requirement, along the lines of the European
Convention (discussed above (665) ). For example, Algeria’s arbitration legislation
provides that “an arbitration is international if it relates to a dispute involving the
interests of international trade, in which at least one of the parties has its headquarters
or domicile abroad.” (666)

[g] Future Directions: “International” Arbitration Agreements Under National Arbitration

Legislation
The better approach, to be adopted in legislative drafting or by judicial interpretation
when statutory text will permit, is to define “international” arbitration agreements as
extending to any agreement between nationals or residents of different states, or to any
agreement involving a transaction that has a reasonable relationship to one or more
foreign states. (667) That latter category includes the shipment of goods, or the provision
of intellectual property, technology, know-how, services, or finance, to or from a foreign
state. At the same time, this definition generally excludes agreements to arbitrate
between nationals and domiciliaries of a single state, involving a purely domestic

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 transaction, typically including when they agree to arbitrate abroad. (668) This approach
is consistent with the better-conceived national legislative approaches (including the
UNCITRAL Model Law, the FAA and the Swiss Law on Private International Law), as well as
with the objectives of the international arbitral process.
In principle, as discussed below, national arbitration legislation’s provisions regarding
the validity and specific enforceability of arbitration agreements should be extended to
all international arbitration agreements regardless of the arbitral seat. (669) That is
consistent with the approach of the Model Law, FAA, English Arbitration Act and other
national arbitration legislation. (670) As discussed below, provisions of national law
regarding other aspects of the arbitration agreement, including particularly rules
regarding choice of law and competence-competence, should also apply to arbitration
agreements regardless of the arbitral seat, although this is not the majority approach of
national legislation. (671)

[D] “Disputes” or “Differences”

International arbitration conventions and national legislation are generally limited to
agreements to arbitrate “disputes,” or “differences.” As discussed above, Article II(1) of
the New York Convention applies to an agreement to arbitrate “differences,” (672) while
Article I(1)(a) of the European Convention applies to agreements to arbitrate “disputes.”
(673) Similarly, Article 7(1) of the UNCITRAL Model Law and most other national arbitration
legislation applies to agreements to arbitrate “disputes” or “controversies.” (674)
In virtually all settings, a dispute requires only an assertion or claim of a legal
entitlement by one party and a denial or refusal to fulfill that claim by a counter-party.
(675) As the Permanent Court of International Justice concluded, in one frequently-cited
decision, “[a] dispute is a disagreement on a point of law or fact, a conflict of legal views
or of interests between two persons.” (676) Or, in the words of one arbitral award, a
dispute is a “present divergence of interests and opposition of legal views.” (677)
In practice, virtually any commercial disagreement will constitute a “dispute.” (678) In
particular, it is clear that the existence of a dispute does not involve any consideration of
the merits or substance of either parties’ claims (or defenses), and considers only
whether or not there is an asserted disagreement. (679)
Despite this, a few national courts have held, in particular cases, that national arbitration
legislation was inapplicable because there was no real “dispute” between the parties,
after concluding that one party’s position was either concededly or undeniably
unsustainable. (680) As one court put it, a stay of litigation is only required if there is a
“real and genuine dispute” to be referred to arbitration. (681)
These interpretations of the term “dispute” are misconceived. A decision on the merits of
the parties’ dispute is one for the arbitrators to make, and national courts are not
authorized to circumvent the agreement to arbitrate by inquiring whether one party’s
position is or is not tenable, reasonable, or in good health. That is true even if requiring
arbitration will impose undue costs or delays: it was the parties’ decision to conclude an
agreement to arbitrate and that agreement must be enforced. Recognizing precisely this
point, the drafters of the English Arbitration Act, 1996, (682) and subsequent English
judicial decisions, (683) have rejected prior authority and provided expressly that a
“dispute” exists so long as there is a claim by one party against another party who refuses
to accept the claim. (684) Decisions in other jurisdictions are similar. (685)
Nonetheless, in cases involving unequivocal admissions of liability, some courts continue
to hold that no “dispute” capable of reference to arbitration exists. (686) This
requirement is generally interpreted narrowly, with those courts which apply it requiring
proof that a party has unequivocally admitted a claim; a showing that there is no
arguable defense to a claim or that a claim has not been affirmatively disputed will
ordinarily not be sufficient. (687)

[E] Disputes “Whether Contractual or Not”

International and national arbitration instruments also contain language that extends
the definition of “arbitration agreement” to agreements to resolve disputes “whether
contractual or not.” (688) These provisions have the effect of ensuring the presumptive
validity of arbitration agreements concerning noncontractual disputes, such as disputes
involving claims of tort (delict) or breach of statutory protections (antitrust/competition,
securities laws). (689) As discussed elsewhere, these are categories of disputes where

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 arbitration agreements historically have been particularly likely to encounter
enforcement difficulties, (690) and the express confirmation that agreements concerning
such claims are arbitrable assists in overcoming these obstacles. It is clear that the
reference to noncontractual disputes is to be interpreted expansively, to permit
arbitration in principle of the broadest possible range of matters. (691)
Consistent with this analysis, a Canadian court held:

“The mere fact that a claim sounds in tort does not exclude arbitration. … The
[New York] Convention and [the International Commercial Arbitration] Act …
cover both contractual and non-contractual commercial relationships. They
thus extend their scope to liability in tort so long as the relationship that
creates liability is one that can fairly be described as ‘commercial’ … a claim
that a corporation conspired with its subsidiaries to cause harm to a person
with whom it has a commercial relationship raises a dispute ‘arising out of a
commercial legal relationship, whether contractual or not.’” (692)
As discussed in greater detail below, arbitral tribunals and national courts have routinely
upheld the arbitrability of tort and other noncontractual claims. (693) There can be no
serious doubt but that agreements to arbitrate tort claims are subject to the New York
Convention, Inter-American Convention and all contemporary national arbitration
statutes. (694) The same is in principle true of statutory claims, although these may
exceptionally be subject to national nonarbitrability rules. (695)

[F] Disputes “Which Have Arisen or Which May Arise”

International and national arbitration instruments also contain provisions that extend
the definition of “arbitration agreement” to disputes “which have arisen or which may
arise.” (696) This language makes clear that an arbitration agreement may apply to future,
as well as existing, disputes. This expressly rejects an historic view (still followed until
recently in a few jurisdictions) that an arbitration agreement would only be valid if it
applied to existing, and not future, disputes. (697) The Convention’s treatment of future
and existing disputes, on equal terms, has been characterized as a uniform international
standard arising under the Convention. (698)

[G] Reciprocity Reservation

The New York Convention permits Contracting States to make reciprocity reservations.
(699) Article I(3) of the Convention provides that a Contracting State may “on the basis of
reciprocity declare that it will apply the Convention to the recognition and enforcement
of awards made only in the territory of another Contracting State.” (700) Roughly two-
thirds of the Convention’s 172 Contracting States have made reciprocity reservations
under Article I(3). (701) In addition, Article XIV of the Convention contains a separate,
more general reciprocity provision, limiting a Contracting State’s rights under the
Convention to those which it “is itself bound to apply.” (702)
In contrast, other international instruments do not ordinarily include a reciprocity
limitation. That is true with respect to both the European Convention and the Inter-
American Convention. (703) Similarly, national arbitration statutes do not ordinarily
contain any express reciprocity requirements applicable to the enforcement of
arbitration agreements (or arbitral awards). Thus, no reciprocity requirement is
contained in the UNCITRAL Model Law, Chapter 2 or 3 of the FAA, the French Code of Civil
Procedure, the Swiss Law on Private International Law, or the Japanese Arbitration Act.
The applicability of the New York Convention’s reciprocity requirement to arbitration
agreements – as distinguished from arbitral awards (704) – is not clear. The reciprocity
limitations in Article I(3), and in most states’ reciprocity reservations, refer, by their
literal terms, only to arbitral awards, not arbitration agreements. At least arguably,
therefore, Article II’s requirements for the recognition and enforcement of arbitration
agreements apply without regard to reciprocity, including, for example, to agreements to
arbitrate in non-Contracting States or with nationals of non-Contracting States. (705)
Notwithstanding this, several national courts have limited the reach of Article II of the
Convention to only those arbitration agreements that specify an arbitral seat in another
Contracting State – that is, these courts have refused to “refer” a party to arbitration in a
seat within a country that is not a Contracting State under the Convention, reasoning
among other things that there is an implied exception to Article II for agreements that
would produce unenforceable awards because of the reciprocity reservation. (706)

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 Similarly, Article XIV of the Convention refers more broadly to reciprocity, without
limiting the principle to awards; at least arguably, the purposes of the reciprocity
reservation would appear applicable to arbitration agreements as well as awards.
Other national courts, both in the United States and elsewhere, have rejected this view.
They have reasoned, for example, that Article I(3)’s reciprocity “limitation clearly applies
only to the recognition and enforcement of arbitral awards; it has no relevance to the
problem pending before this court – whether to order arbitration under the terms of the
Convention.” (707)
Even if it applies to arbitration agreements, a reciprocity limitation does not necessarily
relieve nationals of Contracting States of obligations to arbitrate against nationals of
non-Contracting States. Some U.S. courts have held that U.S. parties (and other parties
from Contracting States) are required by the Convention to arbitrate against parties from
non-Contracting States, provided that the arbitration agreement specifies an arbitral
seat in a Contracting State. (708) This reasoning fails to address the more general terms of
Article XIV, or the basic purposes of the Convention’s reciprocity exception. As discussed
in greater detail below, these purposes would permit a Contracting State to deny the
Convention’s protections to parties from non-Contracting States, who sought to invoke the
Convention against a party from a Contracting State. (709)

[H] Prospective Application Reservation

A few Contracting States have made reservations limiting application of the New York
Convention to awards rendered, and/or arbitration agreements entered, after the state’s
accession to the Convention. (710) For example, Belize adopted a reservation limiting the
Convention’s application to “Arbitral Awards rendered after the date of its accession,”
while Malawi purported to limit the Convention’s applicability to “arbitration agreements
concluded, or arbitral awards rendered, after the date Malawi accedes to the Convention
and not those before that date,” and Sierra Leone “with respect to arbitration
agreements concluded and arbitral awards rendered after the date of its accession to the
Convention.” (711)
The Convention does not provide expressly for such “prospective application”
reservations, in contrast to its treatment of commercial relationship and reciprocity
reservations. As a consequence, the validity of such reservations is open to serious
question, (712) although there appears to have been no objection to these reservations by
other Contracting States. These reservations also give rise, depending on their wording, to
interpretive questions, particularly concerning whether the reservation applies to both
awards and arbitration agreements issued or entered after the date of accession. Where
reservations refer only to awards, there is a substantial argument that pre-accession
arbitration agreements are not within the scope of the reservation.

[I] “Writing” and Other Form Requirements

A final arguable jurisdictional requirement for both international arbitration conventions
and national arbitration legislation involves written (and related) form requirements. As
discussed below, Article II of the New York Convention applies only to “agreements in
writing” to arbitrate, which are defined by Article II(2) of the Convention to include “an
arbitral clause in a contract or an arbitration agreement, signed by the parties or
contained in an exchange of letters or telegrams.” (713) Similarly, the UNCITRAL Model
Law and other leading national arbitration statutes impose a variety of different “writing”
and similar form requirements. (714)
As discussed below, some of these instruments’ form requirements are matters of the
validity of arbitration agreements; if these requirements are not satisfied, then the
agreement is not valid. (715) As also discussed below, other form requirements are
instead jurisdictional conditions for the applicability of the relevant convention or
legislation; in particular, that is the case with the written form requirement applicable
under the New York Convention. (716) The subject of written (and other) form
requirements is discussed in detail below. (717)

§2.04 RELEVANCE OF ARBITRAL SEAT TO LEGAL FRAMEWORK GOVERNING

INTERNATIONAL ARBITRATION AGREEMENTS
As discussed elsewhere, the location of the arbitral seat plays an essential role in
determining the legal framework for international arbitral proceedings (718) and

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 international arbitral awards. (719) In general, the law of the arbitral seat provides a
mandatory legal framework applicable to the conduct of the arbitral proceedings, (720)
and to the form, notification, correction and annulment of an arbitral award. (721)
As noted above, the location of the arbitral seat ordinarily has less importance in
determining the legal framework for international arbitration agreements than for
arbitral proceedings or awards. (722) Rather, the rules of presumptive validity of
arbitration agreements, and related enforcement mechanisms, that exist under leading
pro-arbitration legal regimes generally apply to international arbitration agreements
providing either for arbitrations seated locally or for arbitrations seated abroad.
Nonetheless, as also noted above, there are important instances where different
statutory provisions of national arbitration legislation apply depending on the location of
the seat.

[A] International Arbitration Conventions

As discussed above, the pro-arbitration regimes of most international arbitration
conventions do not depend on the location of the arbitral seat insofar as provisions
regarding arbitration agreements are concerned. Rather, under the Geneva Protocol, the
European Convention and the Inter-American Convention, international arbitration
agreements are subject to the conventions’ respective pro-arbitration provisions
regardless of the location of the arbitral seat. (723)
The only arguable exception to this approach is the New York Convention, where, as
discussed above, application of Article II of the Convention arguably depends on whether
an arbitration agreement will result in a foreign arbitral award. (724) The better view,
however, is that the Convention applies to all international arbitration agreements,
regardless whether the arbitral seat is abroad or not. (725) This is consistent with the text
and purposes of the New York Convention, the approach of other leading international
arbitration conventions and with the weight of national court authority under the
Convention, which applies Article II to all international arbitration agreements, whether
providing for foreign arbitral seats or otherwise. (726) This approach is also consistent
with the overwhelming weight of national arbitration legislation, including the UNCITRAL
Model Law, which apply regardless where the arbitral seat is located. (727)

[B] National Arbitration Legislation

Under all contemporary national arbitration legislation, the basic rule of presumptive
validity of international arbitration agreements, and the mechanisms for enforcing such
agreements apply equally to arbitration agreements providing for foreign arbitral seats
and for domestic arbitral seats. That is the case, for example, with Article 8 of the
UNCITRAL Model Law, (728) as well as virtually all other contemporary national
arbitration statutes. (729)
As discussed elsewhere, the UNCITRAL Model Law is generally-applicable only to
arbitrations seated within national territory. (730) One important exception to this
territorial limitation is Article 8 – setting forth the basic rule of presumptive
enforceability of arbitration agreements and the obligation of specific enforceability
(731) – which applies to international arbitration agreements without regard to the
location of the arbitral seat. (732) Consistent with this, judicial decisions in Model Law
jurisdictions have almost uniformly applied Article 8 without regard to the location of the
arbitral seat. (733)
Nonetheless, other significant aspects of the Model Law’s legal regime for international
arbitration agreements apply, by their terms, only to agreements providing for
arbitration within national territory. In particular, as noted above, the Model Law’s
provisions regarding written form, competence-competence and the tribunal’s power to
order provisional measures are not directly applicable to agreements to arbitrate
abroad. (734) These provisions may be applicable by analogy, (735) but are excluded from
direct application by Article 1(2) of the Model Law.
Other national arbitration legislation applies equally to agreements to arbitrate
domestically and abroad. In the United States, the FAA’s provisions regarding the
presumptive validity of arbitration agreements apply without regard to the arbitral seat.
(736) The same applies to U.S. rules regarding competence-competence, (737)
interpretation, (738) legal effects (739) and the choice of law governing arbitration
agreements. (740)

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 French law adopts an approach comparable to that in the United States. The
international provisions of the French Code of Civil Procedure (Articles 1504 to 1527) apply
to all international arbitration agreements, (741) regardless of the location of the arbitral
seat. This approach extends to French choice-of-law and competence-competence rules
applicable to international arbitration agreements. (742)
In contrast, the Swiss Law on Private International Law distinguishes between agreements
to arbitrate abroad and agreements to arbitrate in Switzerland. As discussed above,
Article 176 of the Swiss Law on Private International Law limits the legislation’s scope to
“any arbitration if the seat of the arbitral tribunal is in Switzerland.” (743) This limitation
has been held applicable to Article 178’s provisions regarding the formal and substantive
validity of arbitration agreements. (744) Under Swiss law, arbitration agreements
providing for arbitration abroad are governed by Article II of the New York Convention
(not Article 178). (745)
The better approach is that taken by U.S. and French law, which is generally to apply the
same legal framework to all international arbitration agreements, regardless of the
location of the arbitral seat. Provided that an international arbitration agreement is
involved, there is no reason to discriminate against (or in favor of) agreements to
arbitrate abroad. The same validity (substantive and formal), separability, choice-of-law,
competence-competence, enforceability and interpretation rules should be applied by a
national court to all international arbitration agreements, regardless of the arbitral seat.
As discussed in subsequent Chapters, this is also the approach generally taken, either
directly or by analogy (or otherwise), in most developed jurisdictions.

References
1) For commentary, see §1.04.
2) Dell Computer Corp. v. Union des Consommateurs, 2007 SCC 34, ¶51 (Canadian S.Ct.).
3) See §1.02[B][3] .
4) See §1.02[B].
5) See §1.04.
6) See §1.04[A]; §1.04[B][1]; §5.01; §8.01 . See also B. Berger & F. Kellerhals, International and
Domestic Arbitration in Switzerland ¶20 (4th ed. 2021); G. Born & P. Rutledge, International
Civil Litigation in United States Courts 1367-70 (7th ed. 2023); J. Carter & J. Fellas,
International Commercial Arbitration in New York 37 (2d ed. 2016); E. Gaillard & J. Savage
(eds.), Fouchard Gaillard Goldman on International Commercial Arbitration ¶¶1-4 (1999).
7) See §1.04[A][1].
8) As noted above, the Convention’s title is the “United Nations Convention on the
Recognition and Enforcement of Foreign Arbitral Awards,” with no reference to arbitration
agreements. See §1.04[A][1].
9) See §1.04[A][1].
10) Sanders, A Twenty Years’ Review of the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards, 13 Int’l Law. 269, 277-79 (1979) (“The New York Convention was
adopted to address the needs of the international business community and to facilitate
international trade and commerce. In particular, the Convention aimed to improve the
legal regime provided by the Geneva Protocol on Arbitration Clauses of 1923 … and the
Geneva Convention on the Execution of Foreign Arbitral Awards of 1927”); U.N. Economic
and Social Council, Consideration of the Draft Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, U.N. Doc. E/CONF.26/L.59, Agenda Item 4, ¶2 (1958)
(working group draft of Article II); U.N. Economic and Social Council, Summary Record of the
Twenty-Third Meeting of the United Nations Conference on International Commercial
Arbitration, U.N. Doc. E/CONF.26/SR.23 (1958) (discussing Article II); A. van den Berg, The
New York Arbitration Convention of 1958 6-10, 135 (1981).

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 11) See, e.g., Compañía de Inversiones Mercantiles, SA v. Grupo Cementos de Chihuahua SAB de
CV, 58 F.4th 429, 460-61 (10th Cir. 2023) (“‘The principal purpose of the [FAA] is to ensure
that private arbitration agreements are enforced according to their terms.’ That principle
also underlies the Convention, as the Supreme Court has explained that ‘[t]he goal of the
Convention, and the principal purpose underlying American adoption and implementation
of it, was to encourage the recognition and enforcement of commercial arbitration
agreements”) (quoting AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 344 (U.S. S.Ct. 2011) &
Scherk v. Alberto-Culver Co., 417 U.S. 520 (U.S. S.Ct. 1974)); Polimaster Ltd v. RAE Sys., Inc.,
623 F.3d 832, 841 (9th Cir. 2010) (“[T]he New York Convention was enacted to promote the
enforceability of international arbitration agreements”); Int’l Ins. Co. v. Caja Nacional De
Ahorro y Seguro, 293 F.3d 392, 399 (7th Cir. 2002) (“The purpose of the New York Convention,
and similarly the Panama Convention, is to ‘encourage the recognition and enforcement of
commercial arbitration agreements in international contracts and to unify the standards
by which agreements to arbitrate are observed and arbitral awards are enforced in the
signatory countries’”) (quoting Scherk v. Alberto-Culver Co., 417 U.S. 506, 520 (U.S. S.Ct.
1974)); Judgment of 20 January 1987, Bomar Oil NV v. Entreprise Tunisienne d’Activités
Pétrolières , 1987 Rev. Arb. 482, 485-86 (Paris Cour d’Appel) (“Considering the silence of the
[New York] Convention, its interpretation requires to determine the objective of its drafters
… to facilitate dispute resolution by way of international commercial arbitration”);
Judgment of 2 July 2012, DFT 5A_754/2011, ¶5.4.3. (Swiss Fed. Trib.) (“[T]he purpose of the
New York Convention is to facilitate the recognition and enforcement of foreign arbitral
awards”); Judgment of 7 February 1984, Tradax Exp. SA v. Amoco Iran Oil Co., DFT 110 II 54, 59
(Swiss Fed. Trib.) (1986) (“[P]urpose of the Convention is to facilitate the resolution of
disputes through arbitration”); Judgment of 30 September 2010, 2011 NJW-RR 570, 571
(German Bundesgerichtshof) (“[Convention] was intended to facilitate the enforcement of
arbitration agreements”); Automatic Sys. Inc. v. Bracknell Corp., (1994) 18 OR3d 257, 13
(Ontario Ct. App.) (“The purpose of the United Nations Conventions and the legislation
adopting them is to ensure that the method of resolving disputes, in the forum and
according to the rules chosen by the parties, is respected”); C v. D, [2023] HKCFA 16, ¶92
(H.K. Ct. Fin. App.) (“[A]n important object of the ... New York Convention on the enforcement
of awards...is to facilitate international arbiration by harmonizing the arbitral regimes of
different countries”); Altain Khuder LLC v. IMC Mining Inc., [2011] VSC 1, ¶53 (Victoria Sup.
Ct.), rev’d on other grounds, [2011] VSCA 248, ¶45 n.16 (Victoria Ct. App.) (“The New York
Convention is widely recognised in international arbitration circles as having a ‘pro-
enforcement’ policy”); Judgment of 20 September 2012, Case No. REsp 1203430-PR (Brazilian
Superior Tribunal de Justiça) (“With the ratification of the New York Convention, Brazil
assumed the commitment to recognize foreign arbitration awards as binding”). See also
Wolff, The Arbitral Award, in R. Kreindler et al. (eds.), Commercial Arbitration in Germany
¶6.287 (2016).
12) Scherk v. Alberto-Culver Co., 417 U.S. 506, 521 (U.S. S.Ct. 1974). Similarly, the Swiss Federal
Tribunal has held that “the object and purpose of the New York Convention is to facilitate
the recognition and enforcement of foreign arbitral awards,” and that “interpretation of the
Convention’s provisions should be enforcement friendly and follow a ‘pragmatic, flexible,
and non-formalistic approach,’ as confirmed by Swiss federal case law.” Judgment of 2 July
2012, DFT 5A_754/2011, ¶5.4.3 (Swiss Fed. Trib.).
13) New York Convention, Art. II(1). The formal requirements that the Convention imposes with
regard to arbitration agreements are elaborated in Art. II(2) of the Convention. See §5.02[A]
[2]. See also UNCITRAL, Guide on the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards 45-47 (2016) (Article II prescribes presumption of validity of
international arbitration agreement: “Provided that certain conditions are satisfied, article
II mandates Contracting States to recognize an agreement in writing to submit disputes to
arbitration and to enforce such an agreement by referring the parties to arbitration”).
14) See Scherk v. Alberto-Culver Co., 417 U.S. 506 (U.S. S.Ct. 1974); Judgment of 7 February 1984,
Tradax Exp. SA v. Amoco Iran Oil Co., DFT 110 II 54, ¶¶55-60 (Swiss Fed. Trib.) (1986); Seeley
Int’l Pty Ltd v. Electra Air, [2008] FCA 29 (Australian Fed. Ct.); Judgment of 26 November 2020,
2021 NJW-RR 376, 377 (German Bundesgerichtshof); Judgment of 1 March 2023, Luz Oriente SA
ESP v. Empresas Públicas del Oriente SA ESP, Case No. 05001233100020020207701 (Colombian
Consejo de Estado [Council of State]); Judgment of 19 April 2023, Rosario Máquinas Agrícolas
SRL v. CNH Indus. Argentina SA, Case No. COM 2727/2022 (Argentine Cámara Nacional de
Apelaciones en lo Comercial); Judgment of 28 August 2019, Pecaltex, SAPI de C.V., Case No.
159/2019 (Mexican Tribunal Colegiado de Circuito). See also §3.01-, §4.01-§4.09.
15) New York Convention, Art. II(3).
16) See §5.01[B][2]; §8.03.

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 17) See §1.04[A][1]; §5.01[B][2]; §5.02[A][2]; §5.06[B][1]. See also Judgment of 15 January 1992, XVIII
Y.B. Comm. Arb. 427, 430 (Italian Corte di Cassazione) (1993) (Article II “means that
arbitration prevails [over] court proceedings, so that the enforcement court, if it ascertains
that there is a clause validly referring disputes to foreign arbitration, may not take into
consideration court proceedings initiated before the foreign award became final. … The
[enforcement court and the court seized of an action on the merits] maintain their
separate competence: the latter examines the arbitration agreement or arbitral clause, in
order to ascertain whether it has jurisdiction [over] the dispute; the former – the [court]
seized of an enforcement action – sees the existence of a valid arbitral clause only as one
of the conditions for enforcement under Article V(1)(a)”).
18) See §1.04[B][2].
19) Quigley, Accession by the United States to the United Nations Convention on the Recognition
and Enforcement of Foreign Arbitral Awards, 70 Yale L.J. 1049, 1062 (1961) (“Article II(1)
requires each State to ‘recognize’ agreements in writing, to ‘submit to arbitration past or
future differences arising between the parties in respect of a defined legal relationship,
whether contractual or not, concerning a subject matter capable of settlement by
arbitration.’ This extraordinary provision has many facets”).
20) See §5.04[B][1].
21) See §4.04[A][1].
22) See §2.01[B][1]-§2.01[B][2]; §2.03[B][1][b][ii]. See also M. Paulsson, The 1958 New York
Convention in Action 12 (2016) (“Courts have thus embraced the pro-enforcement stance
that lies at the heart of the Convention”).
23) New York Convention, Art. VII(1). See §4.06[A][2].
24) It does so through provisions for the organization of the arbitral proceedings, the rights of
public entities and jurisdictional objections. See European Convention, Arts. II(1), IV, V.
There is, however, no express provision paralleling Article II of the New York Convention.
25) European Convention, Art. V(1) (“[E]ither non-existent or null and void or had lapsed”).
26) Inter-American Convention, Art. 1 (emphasis added). Unlike the New York Convention, this
provision does not expressly identify grounds for challenging the presumptive validity of
arbitration agreements, although such grounds are clearly implied in the Convention. Thus,
Article 5 of the Inter-American Convention specifies numerous grounds on which an arbitral
award may be denied recognition. One of these grounds is “[t]hat the parties to the
agreement were subject to some incapacity under the applicable law or that the
agreement is not valid under the law to which the parties have submitted it, or, if such law
is not specified, under the law of the state in which the decision was made.” Id. at Art. 5(1)
(a). See §26.05[A]. See also Grigera Naón, Arbitration in Latin America: Overcoming
Traditional Hostility, 5 Arb. Int’l 137, 146 (1989).
27) UNCITRAL Model Law, Art. 8(1). See §5.01[C][1]; §7.03[A][2]; §8.02[C].
28) See §5.04[A][3]; .
29) See §25.04[A][2]. See also Lamm & Sharpe, Inoperative Arbitration Agreements Under the
New York Convention, in E. Gaillard & D. Di Pietro (eds.), Enforcement of Arbitration
Agreements and International Arbitral Awards 304 (2009).
30) See, e.g., Burlington N. R.R. Co. v. Canadian Nat’l Railway Co., (1995) 20 BLR2d 145, ¶58 (B.C.
Ct. App.) (“‘very strong public policy’” that arbitration agreement be given full effect)
(quoting Boart Sweden AB v. NYA Stromnes AB, (1988) 41 BLR 295, 302-03 (Ontario Super.
Ct.)), rev’d on other grounds, [1997] 1 SCR 5 (Canadian S.Ct.). See also City of Prince George v.
A.L. Sims & Sons Ltd, [1995] 61 BCAC 254, ¶¶36-37 (B.C. Ct. App.); Automatic Sys. Inc. v. E.S.
Fox Ltd, [1994] 12 BLR2d 148, ¶¶5-6 (Ontario Ct. App.); BWV Invs. Ltd v. Saskferco Prods. Inc.,
[1994] 17 CLR2d 165 (Saskatchewan Ct. App.); Boart Sweden AB v. NYA Stromnes AB, [1988] 41
BLR 295, 302-03 (Ontario Super. Ct.); Celment v. Primequine Corp. Ltd, [1999] HKCFI 1472, ¶¶8,
11 (H.K. Ct. First Inst.); Judgment of 5 August 2020, Spectrum Trim, LLC, Case No. 7790/2019
(Mexican Suprema Corte de Justicia de la Nación); Housing Auth. v. Top Symphony SDN BHD,
[2023] FJHC 301 ¶¶ 23, 27, 29, 49 (Fiji High Ct.).

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 31) Yugraneft Corp. v. Rexx Mgt Corp., (2007) 31 BLR 168, ¶53 (Alberta Q.B.). See also Nanisivik
Mines Ltd v. Canarctic Shipping Co. Ltd, [1994] 2 FC 662, ¶13 (Canadian Fed. Ct. App.); Canada
v. S.D. Myers Inc., [2004] 3 FCR 368, ¶42 (Canadian Fed. Ct.); Transnacional de Inversiones, SA
de CV v. STET Int’l, SpA, [1999] 45 OR3d 183, ¶¶22-23 (Ontario Ct. App.); BWV Invs. Ltd v.
Saskferco Prods. Inc., [1994] 17 CLR2d 165 (Saskatchewan Ct. App.); Kaverit Steel & Crane Ltd
v. Kone Corp., [1992] ABCA 7, ¶49 (Alberta Ct. App.); Louis Dreyfus SAS v. Holding Tusculum
BV, [2008] QCCS 5903, ¶83 (Québec Super. Ct.); Bayview Irrigation Dist. No. 11 v. United
Mexican States, [2008] CanLII 22120, ¶¶12-13 (Ontario Super. Ct.); Grow Biz Int’l, Inc. v. D.L.T.
Holdings Inc., [2001] PESCTD 27, ¶29 (Prince Edward Island Sup. Ct.); Cangene Corp. v.
Octapharma AG, [2000] MBQB 111, ¶15 (Manitoba Q.B.); Celment v. Primequine Corp. Ltd,
[1999] HKCFI 1472 (H.K. Ct. First Inst.); Comandate Marine Corp. v. Pan Australia Shipping Pty
Ltd, [2006] FCAFC 192, ¶193 (Australian Fed. Ct.).
32) See §5.06; Suazo v. NCL (Bahamas), Ltd, 822 F.3d 543, 547 (11th Cir. 2016) (broad defenses
available in domestic arbitration are not available in international arbitrations governed
by New York Convention); Escobar v. Celebration Cruise Operator, Inc., 805 F.3d 1279, 1286
(11th Cir. 2015) (arbitration agreement can only be challenged on basis of standard breach-
of-contract defenses, including fraud, mistake, duress or waiver).
33) U.S. FAA, 9 U.S.C. §2 (emphasis added). For discussion of §2 and the enforceability of
arbitration agreements under the FAA, see §1.04[B][1][e][ii]; §4.04[B][3][b]; §5.01[C][2].
34) See §1.04[B][1]; §5.01[C]; French Code of Civil Procedure, Art. 1448 (“When a dispute subject
to an arbitration agreement is brought before a court, such court shall decline jurisdiction,
except if an arbitral tribunal has not yet been seized of the dispute and if the arbitration
agreement is manifestly void or manifestly not applicable”); Swiss Law on Private
International Law, Art. 178; Japanese Arbitration Law, Art. 4; Brazilian Arbitration Law, Art. 4;
Portuguese Law on Voluntary Arbitration, Art. 3; Macau Law on Voluntary Arbitration, Art. 12;
Angola Law on Voluntary Arbitration, Art. 4; Mozambique Arbitration Law, Art. 15.
35) See §1.01[B][4]-§1.01[B][5] & §1.01[B][7]; §1.04[B][2]; §5.01[C][5].
36) Volt Info. Sciences, Inc. v. Stanford Univ., 489 U.S. 468, 478 (U.S. S.Ct. 1989) (quoting Scherk v.
Alberto-Culver Co., 417 U.S. 506, 511 (U.S. S.Ct. 1974)). See also Morgan v. Sundance, Inc., 596
U.S. 411, 418 (U.S. S.Ct. 2022) (“The [FAA’s] policy [favoring arbitration] is to make
‘arbitration agreements as enforceable as other contracts, but not more so’”) (quoting
Prima Paint Corp. v. Flood & Conklin Mfg Co., 388 U.S. 395, 404 (U.S. S.Ct. 1967)); Henry
Schein, Inc. v. Archer & White Sales, Inc., 139 S.Ct. 524, 529 (U.S. S.Ct. 2019) (“We must
interpret the [FAA] as written, and the [FAA] in turn requires that we interpret the contract
as written”); Am. Express Co. v. Italian Colors Rest., 570 U.S. 228, 233 (U.S. S.Ct. 2013)
(“overarching principle that arbitration is a matter of contract”); Hall St. Assocs., LLC v.
Mattel, Inc., 552 U.S. 576, 581 (U.S. S.Ct. 2008) (“Congress enacted the FAA to replace judicial
indisposition to arbitration with a ‘national policy favoring it and placing arbitration
agreements on equal footing with all other contracts’”) (quoting Buckeye Check Cashing,
Inc. v. Cardegna, 546 U.S. 440, 443 (U.S. S.Ct. 2006)); Johnson v. Walmart Inc., 57 F.4th 677,
680 (9th Cir. 2023) (“Congress enacted the FAA to address ‘longstanding judicial hostility to
arbitration agreements’ and place them ‘upon the same footing as other contracts’”)
(quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (U.S. S.Ct. 1991)); Rodriguez-
Rivera v. Allscripts Healthcare Solutions, Inc., 43 F.4th 150, 167 (1st Cir. 2022) (“With the [FAA],
Congress set a ‘liberal federal policy favoring arbitration.’ As part of that liberal policy, the
FAA puts arbitration agreements ‘on equal footing with all other contracts,’ meaning that
courts must treat arbitration as ‘a matter of contract’ and enforce agreements to arbitrate
‘according to their terms’”).

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 37) Prima Paint Corp. v. Flood & Conklin Mfg Co., 388 U.S. 395, 404 n.12 (U.S. S.Ct. 1967)
(emphasis added). See also AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (U.S. S.Ct.
2011) (“[C]ourts must place arbitration agreements on an equal footing with other
contracts”), 357-67 (Breyer, J., dissenting) (“[W]e have repeatedly referred to the Act’s basic
objective as assuring that courts treat arbitration agreements ‘like all other contracts’”)
(emphasis added) (quoting Buckeye Check Cashing, Inc., 546 U.S. at 447); Rent-A-Ctr, W., Inc.
v. Jackson, 561 U.S. 63, 67 (U.S. S.Ct. 2010); Dreyfuss v. Etelecare Global Solutions-U.S. Inc.,
349 F.App’x 551, 553 (2d Cir. 2009) (“[T]he purpose of Congress in enacting the FAA in 1925
was to make arbitration agreements as enforceable as other contracts, but not more so”)
(emphasis added); Rodriguez-Rivera v. Allscripts Healthcare Solutions, Inc., 43 F.4th 150, 167
(1st Cir. 2022) (“FAA puts arbitration agreements ‘on equal footing with all other contracts,’
meaning that courts must treat arbitration as ‘a matter of contract’”); U.S. Titan, Inc. v.
Guangzhou Zhen Hua Shipping Co., 241 F.3d 135, 146 (2d Cir. 2001) (“[C]ourts must treat
agreements to arbitrate like any other contract”) (emphasis added); Kresock v. Bankers
Trust Co., 21 F.3d 176, 178 (7th Cir. 1994) (“An agreement to arbitrate is treated like any other
contract”) (emphasis added).
38) See §1.04[A][1]; §1.04[B]; §2.01[A].
39) Judgment of 18 February 2014, Case No. 1630/06.2YRCBR.C2.S1 (Portuguese Supremo
Tribunal de Justiça) (acknowledging that “the contractual clauses agreed upon by the
parties, in particular, that concerning the arbitration agreement, are not general
contractual clauses to which the LCCG discipline applies”).
40) See §1.04[E]-§1.04[F]; §4.01.
41) See §5.02. See also Final Award in ICC Case No. 18769/VRO/AGF of 17 January 2014, ¶105.
42) See §5.04[D].
43) See §9.01.
44) See §1.04[B][1][a]-§1.04[B][1][d]; §1.04[B][1][e][ii], for a discussion of the separability
presumption.
45) See §1.03; §1.04[B]. See also §1.02[B][9], on the likelihood of international arbitration
producing negotiated settlements.
46) See, e.g., German Civil Code (Contracts), §§145 et seq.; German Civil Code (Sales Contracts),
§§433 et seq.; German Civil Code (Service Contracts), §§611 et seq.; Brazilian Civil Code,
§§481 et seq.; Portuguese Civil Code, §§405 et seq.; Restatement (Second) of Contracts §6
(1981) (“The following types of contracts are subject in some respects to special rules that
depend on their formal characteristics and differ from those governing contracts in
general: (a) Contracts under seal, (b) Recognizances, (c) Negotiable instruments and
documents, (d) Letters of credit”); H. Beale (ed.), Chitty on Contracts ¶¶1-094 to 119 (34th
ed. 2022); E. Peel, Treitel on the Law of Contract ¶¶2-075 to 077 (15th ed. 2020).
47) See §1.05; §3.02; §8.01; §8.03[A]. In some legal systems, arbitration agreements are
categorized as “procedural contracts,” recognizing their special status. See §1.05[A];
§3.02[B][2].
48) See §1.02[B][1] & §1.02[B][6]; §8.01.
49) See §1.04.

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 50) See, e.g., A. Samuel, Jurisdictional Problems in International Commercial Arbitration 75-153
(1989). See also JSC Surgutneftegaz v. Harvard College, 2005 WL 1863676, at *2 (S.D.N.Y.) (“For
the New York Convention to apply to this dispute, there must be a written arbitration
agreement that provides for arbitration in the territory of a signatory to the Convention,
the subject matter of the relationship between the parties must be commercial, and the
dispute cannot be entirely domestic in scope”); Mangin v. Murphy Oil USA, Inc., 2005 WL
1074987, at *3 (E.D. La.) (arbitration agreement is subject to New York Convention because
“(1) there is an agreement in writing to arbitrate the dispute; (2) the agreement provides for
arbitration in the territory of a Convention signatory; (3) the agreement to arbitrate arises
out of a commercial legal relationship; and (4) a party to the agreement is not an American
citizen”); Ju d gment of 14 December 2022, Balogh Kovacs v. Trustee of Fideicomiso Edificio
Avenida del Libertador 1000, Case No. COM 29870/2019 (Argentine Cámara Nacional de
Apelaciones en lo Comercial) (“The arbitration clause is formal, i.e. the expression of the
agreement by which the parties submit a matter to arbitration must be in writing”);
Judgment of 12 May 2023, Empresa Pública de Hidrocarburos del Ecuador, Ep Petroecuador v.
Servicios Integrados Pañaturi SA, Case No. 10750-2022 (Chilean Corte de Apelaciones de
Santiago) (written arbitration clause “constitutes an arbitration commitment which
contains the express and unequivocal consent of Petroamazonas to submit to arbitration”);
Judgment of 10 October 2022 , 101 SchH 46/22 (Bavarian Oberlandesgericht) (specifying
“minimum requirements for arbitration agreements concerning shareholder resolution
disputes”). See also B. Berger & F. Kellerhals, International and Domestic Arbitration in
Switzerland ¶¶277 et seq. (4th ed. 2021); J.-F. Poudret & S. Besson, Comparative Law of
International Arbitration ¶149 et seq. (2d ed. 2007).
51) See §2.02-§2.03. In addition, as also discussed below, the applicability of national
arbitration legislation also frequently depends on the location of the arbitral seat. See
§2.04.
52) See §2.03[I]; §4.06[A]; §5.02.
53) In some cases, national arbitration statutes apply more broadly than international
conventions (for example, applying to domestic as well as international arbitrations, e.g.,
German ZPO, §1029(1)). See §1.04[B][1][c]-§1.04[B][1][d]. In many cases, however, identical or
nearly identical jurisdictional requirements apply under both national arbitration
legislation and international treaties.
54) See §1.04[A]-§1.04[B].
55) In many jurisdictions, modern arbitration legislation did not abrogate preexisting statutory
or common law mechanisms for enforcing arbitration agreements, which continue to apply
when legislative regimes do not. See McClelland v. Hammond, 54 P. 538, 539 (Colo. App.
1898) (“The act did not undertake, either in terms or by implication, to abolish common law
arbitrations. … Arbitration is favored by the law as a convenient mode of adjusting
disputes. … This being true, the presumption will not be indulged that the Code abolished
or made ineffective common law arbitrations simply because it provided a method for the
submission and settlement of controversies which, if followed, might be more effective and
furnish a more conclusive and expeditious remedy”); W. Sturges, A Treatise on Commercial
Arbitrations and Awards 6 (1930) (“[I]t is generally accepted that common law arbitrations in
the several states are not abrogated by the arbitration statutes”).
56) Thus, an agreement for something other than “arbitration” (e.g., an agreement for
conciliation or expert determination) is not subject to either Article II of the New York
Convention or to national arbitration legislation (such as Articles 7 and 8 of the UNCITRAL
Model Law or §3 of the FAA), providing for a stay of judicial proceedings pending
“arbitration.” See §8.03[C][1].
57) As discussed below, proceedings involving something other than “arbitration” are not
subject to the protection of Article II of the New York Convention or Article 5 of the
UNCITRAL Model Law, limiting judicial interference in the arbitral process, or Articles 9, 12,
13 and 17 of the Model Law, providing specified forms of judicial assistance to the arbitral
process. See §11.02[A]; §15.06.

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 58) As discussed below, international arbitration agreements are subject to a pro-arbitration
interpretative presumption that the parties intended to include all disputes relating to
their contract within the scope of their arbitration agreement. See §9.02[D][1]. See also
Mozambique v. Privinvest Shipbuilding SAL [2023] EWCA Civ 329, ¶¶72-78 (English Ct. App.)
(“[W]hile article II(3) of the New York Convention, which requires that the court refer a
matter to arbitration, is silent as to the stay of the court proceedings, legislation
implementing this provision of the New York Convention has generally made express
provision for a stay pro tanto. Section 9 of the 1996 Act has done so expressly. The ‘matter’
therefore need not encompass the whole of the dispute between the parties”); Barclays
Bank plc v. Nylon Capital LLP [2011] EWCA Civ 826, ¶¶27-28 (English Ct. App.) (“As arbitration
will usually be an alternative to a court for the resolution of all the disputes between the
parties, it would not accord with the presumed intention of sensible businessmen to draw
fine distinctions between similar phrases to allow a part of the dispute to be outside the
arbitration and allocated to the court. In contradistinction expert determination clauses
generally presuppose that the parties intended certain types of dispute to be resolved by
expert determination and other types by the court (or if there is an arbitration clause by
arbitrators). The rationale of Fiona Trust does not therefore apply [to an expert
determination clause], as the parties have agreed to two types of dispute resolution
procedure for disputes which might arise under the agreement”); Judgment of 31 October
2018, 2020 NJOZ 234, 235 (German Bundesgerichtshof) (“An agreement that generally assigns
disagreements or disputes arising out of a contract to arbitration is generally to be
interpreted broadly. … It is not in the interest of the parties that these issues be decided
by a state court at one time and by an arbitral tribunal at another”); Judgment of 2 March
2021, 18 OCg 10/19y (Austrian Oberster Gerichtshof) (clause providing “All disputes arising
out of or in connection with this Agreement shall be finally settled ...” grants jurisdiction to
adjust contract price); Judgment of 20 October 2020, 4 Ob 136/20h (Austrian Oberster
Gerichtshof) (all disputes arising out of contract are presumed to be subject to arbitration
agreement).
59) As discussed below, judicial assistance with regard to provisional measures and evidence-
taking in aid of the arbitration are limited generally to arbitrations. See §11.04[C][1][d];
§17.04.
60) As discussed below, a decision other than an arbitral award, resulting from an “agreement
to arbitrate,” is not subject to Articles III, IV and V of the New York Convention, or to
provisions of national arbitration legislation (such as Articles 34 and 36 of the UNCITRAL
Model Law or §§9 and 10 of the FAA) providing for very limited judicial review of an award.
See §22.02[B][3][a].
61) A. van den Berg, The New York Arbitration Convention of 1958 56 (1981) (emphasis added).
62) See §2.02[A]; §2.03[A].
63) See §1.04[A][1]; Schramm, Geisinger & Pinsolle, Article II , in H. Kronke et al. (eds.),
Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New
York Convention 37, 39 et seq. (2010); A. van den Berg, The New York Arbitration Convention of
1958 9 (1981) (“It was the intention to leave the provisions concerning the formal validity of
the arbitration agreement and the referral by a court to arbitration to a separate Protocol.
A similar division existed under the Geneva Treaties. Not until the final days of the New
York Conference was it realized that … a separation [of provisions concerning arbitration
agreements and arbitral awards] could seriously hamper the effectiveness of the new
Convention”); Wolff, in R. Wolff (ed.), New York Convention: Article-by-Article Commentary
Art. II, ¶6 (2d ed. 2019).
64) A. Samuel, Jurisdictional Problems in International Commercial Arbitration 91 (1989) (“The
Convention itself is silent on the ambit of Article II”); A. van den Berg, The New York
Arbitration Convention of 1958 56 (1981) (“Article II was drafted in a race against time, with,
as consequence, the omission of an indication as to which arbitration agreements the
Convention would apply”). See §22.02 for a discussion of the awards that are subject to the
Convention.
65) See §2.02-§2.03.
66) See §5.02[A][2].
67) See §2.02[B]; §2.03.
68) See §2.03[A]; §2.04[B].
69) See §2.03[I]; §4.06[A].

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 70) See §2.02[C][2]; Connerty, The Role of ADR in the Resolution of International Disputes , 12 Arb.
Int’l 47, 50-51 (1996); C. Freedman & J. Farrell, Kendall on Expert Determination ¶6.7-1 (5th
ed. 2015); Neate, Mediation: A Constructive Approach to Dispute Resolution, in G. Aksen (ed.),
Global Reflections on International Law, Commerce and Dispute Resolution: Liber Amicorum
in Honour of Robert Briner 558 (2005); Plant, ADR in the United States of America, in E. Jolivet
(ed.), ADR: International Applications 75 (2001).
71) See §2.01[A][1].
72) See, e.g., Felkner v. Dean Witter Reynolds, Inc., 800 F.2d 1466, 1470 (9th Cir. 1986) (refusing to
enforce dispute resolution agreement that did not meet definition of arbitration);
Judgment of 17 June 2004, Le Parmentier v. La Société Miss France , XXX Y.B. Comm. Arb. 119
(Paris Cour d’Appel) (2005) (decision of WIPO administrative commission may not be set
aside because it is not arbitral award); Judgment of 29 April 2003, Nationale des Pétroles du
Congo v. Total Fina Elf E & P Congo , 21 ASA Bull. 662, 665 (2003) (Paris Cour d’Appel) (ICC
Pre-Arbitral Referee procedure is not arbitration, but merely contractual mechanism;
decision of pre-arbitral referee may not be set aside); Ehle, in R. Wolff (ed.), New York
Convention: Article-by-Article Commentary Art. I, ¶32 (2d ed. 2019); ICCA, Guide to the
Interpretation of the 1958 New York Convention 16 (2011) (“Mediation, conciliation or expert
determination” are dispute settlement mechanisms outside scope of New York
Convention).
73) New York Convention, Art. II(1) (emphasis added).
74) Inter-American Convention, Art. 1 (emphasis added).
75) European Convention, Art. I(2)(a) (emphasis added).
76) See §2.03[F] (“future” disputes may be subject to arbitration agreement); §3.02[A]
(separability presumption).
77) See §2.02[C]; A. Samuel, Jurisdictional Problems in International Commercial Arbitration 31
(1989) (“For over two hundred and fifty years, jurists in Western Europe and the United
States have attempted to describe and define the concept of arbitration”).
78) See §2.02[D]; A. van den Berg, The New York Arbitration Convention of 1958 61-63 (1981). See
also Progressive Cas. Ins. Co. v. CA Reaseguradora Nacional de Venezuela, 802 F.Supp. 1069,
1075-76 (S.D.N.Y. 1992), rev’d, 991 F.2d 42 (2d Cir. 1993).
79) These sorts of national law rules would purport to impose rules of substantive validity in
the guise of a definition of “agreements to arbitrate.” The correct analysis is that the
Convention’s formula – “arbitration agreement” – must be defined through interpretation
of the language and purposes of the Convention and the development of uniform,
mandatory international standards. See also §4.04[A][1].
80) See §2.02[B]; §2.02[D].
81) See §2.02[B] & §2.02[D].
82) UNCITRAL Model Law, Art. 7(1) (emphasis added). See Bantekas & Ortolani, Article 7:
Definition and Form of Arbitration Agreement, in I. Bantekas et al. (eds.), UNCITRAL Model
Law on International Commercial Arbitration: A Commentary 112 (2020); P. Binder,
International Commercial Arbitration and Mediation in UNCITRAL Model Law Jurisdictions
¶¶2-041 to 061, 2-074 to 079 (4th ed. 2019); A. Broches, Commentary on the UNCITRAL Model
Law on International Commercial Arbitration Art. 7, ¶¶1 et seq. (1990); H. Holtzmann & J.
Neuhaus, A Guide to the UNCITRAL Model Law on International Commercial Arbitration:
Legislative History and Commentary 258 et seq. (1989). See also Austrian ZPO, §581(1);
Japanese Arbitration Law, Article 2(1) (“The term ‘Arbitration Agreement’ as used in this Act
means an agreement to refer the resolution of all or certain civil disputes which have
already arisen or which may arise in the future in respect of a certain legal relationship
(irrespective of whether contractual or not) to one or more arbitrators, and to accept the
award made therefor (hereinafter referred to as an ‘Arbitral Award’”); Brazilian Arbitration
Law, Art. 4 (arbitration clause is an “agreement by which the parties to a contract
undertake to submit to arbitration any disputes that might arise with respect to that
contract”).
83) U.S. FAA, 9 U.S.C. §2 (emphasis added). U.S. courts have recognized that this statutory
definition provides limited guidance. See, e.g., Positano Place at Naples I Condo. Ass’n v.
Empire Indem. Ins. Co., 71 F.4th 827, 838 (11th Cir. 2023) (“Congress did not define the term
‘arbitration’ in the FAA”); Evanston Ins. Co. v. Cogswell Props., LLC, 683 F.3d 684, 693 (6th Cir.
2012) (“the FAA does not define ‘arbitration’”); Liberty Mut. Group, Inc. v. Wright, 2012 WL
718857, at *4 (D. Md.); Schofield v. Int’l Dev. Group Co., 2006 WL 504058, at *2 (W.D. Tex.)
(“neither Congress nor the United States Supreme Court has defined what constitutes
arbitration under the FAA”). See also Strong, What Constitutes An “Agreement in Writing” in
International Commercial Arbitration? Conflicts Between the New York Convention and the
Federal Arbitration Act, 48 Stan. J. Int’l L. 47, 65 (2012).

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 84) English Arbitration Act, 1996, §6(1) (emphasis added). See R. Merkin, Arbitration Law ¶¶1.23,
3.1 (1991 & Update July 2023).
85) French Code of Civil Procedure, Art. 1442(2) (emphasis added). Article 1442(3) of the French
Code of Civil Procedure defines an arbitration agreement applicable to existing disputes
as “an agreement by which the parties to a dispute submit such dispute to arbitration.” See
Jarrosson & Pellerin, Le Droit Français de l’Arbitrage Après le Décret du 13 Janvier 2011 , 2011
Rev. Arb. 5, ¶7.
The definition of the arbitration agreement set out in Article 1442 applies to domestic
arbitration and is not expressly incorporated by the relevant provisions of the French Code
of Civil Procedure applicable to international arbitration. See French Code of Civil
Procedure, Art. 1506. The drafters of the French arbitration law sought to avoid limiting the
definition of the arbitration agreement, having in mind in particular investment
arbitration. See Gaillard & de Lapasse, Commentaire Analytique du Décret du 13 Janvier 2011
Portant Réforme du Droit Français de l’Arbitrage, 2011:2 Gaz. Pal. 263, ¶80 (Article 1442
definition of arbitration agreement is relevant in international arbitration, but in
investment arbitration consent to arbitration may result from investment protection
treaty, which does not readily fall within Article 1442).
86) Swiss Law on Private International Law, Arts. 177-78 (not providing any statutory definition
of arbitration). See Judgment of 8 July 2003, DFT 129 III 675, 679 (Swiss Fed. Trib.) (“The
statute does not define the minimal content of an arbitration agreement”); B. Berger & F.
Kellerhals, International and Domestic Arbitration in Switzerland ¶278 (4th ed. 2021)
(“[Chapter 12 of the Swiss Law on Private International Law] neither defines the term
‘arbitration agreement’ nor does it specify its content”).
Swiss commentary defines an arbitration agreement as “an understanding between parties
regarding one or more (current or future) disputes that they will have these resolved in a
binding manner by judgment given by one or more individuals not acting in a state
judiciary function and to the exclusion of state courts.” Wenger, in S. Berti et al. (eds.),
International Arbitration in Switzerland Art. 178, ¶3 (2000).
87) In Belgium, Articles 1676-1678 of the Judicial Code are limited to setting out certain
requirements of a valid arbitration agreement, rather than providing a definition of
“arbitration” or “arbitration agreement.”
88) See, e.g., Swedish Arbitration Act, §1(1) (no definition of “arbitration agreement”); Chinese
Arbitration Law, Arts. 16-20 (no definition of “arbitration agreement”); Italian Code of Civil
Procedure, Art. 808 (no definition of “arbitration agreement”); Argentine National Code of
Civil and Commercial Procedure, Arts. 736-741 (no definition of “arbitration agreement”).
89) See §2.02[A]. See also Restatement of the U.S. Law of International Commercial and Investor-
State Arbitration §1.1 comment d (2023) (“An ‘arbitration agreement’ is an instrument by
which parties agree to submit one or more existing or future disputes to resolution by
arbitration”).
90) That is reflected, for example, in the model arbitration clauses recommended by all
leading arbitral institutions. See G. Born, International Arbitration and Forum Selection
Agreements: Drafting and Enforcing 257 (6th ed. 2021); §1.04[E][1].

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 91) See, e.g., Fit Tech, Inc. v. Bally Total Fitness Holding Corp., 374 F.3d 1, 7 (1st Cir. 2004)
(“Whether the accounting remedy is ‘arbitration’ under the federal statute … does not
depend on the nomenclature used in the agreement”); Travelers Cas. Ins. Co. of Am. v.
Papagiannopoulous, 2023 WL 4826184, at *6 (D. Md.) (“[W]hen determining whether an
appraisal provision constitutes an enforceable arbitration clause under the FAA, thereby
triggering the FAA, ‘[i]t is ... irrelevant that the contract language in question does not
employ the word ‘arbitration’ as such. Rather, what is important is [whether] the parties
clearly intended to submit some disputes to binding review by a third party”); Liberty Mut.
Group, Inc. v. Wright, 2012 WL 718857, at *5 (D. Md.) (“‘It is … irrelevant that the contract
language in question does not employ the word “arbitration” as such. Rather, what is
important is whether the parties clearly intended to submit some disputes’ to binding
review by a third party”) (quoting McDonnell Douglas Fin. Corp. v. Pa. Power & Light Co., 858
F.2d 825, 830-31 (2d Cir. 1988)); Vertner v. TAC Ams., Inc., 2007 WL 2495559, at *3 n.3 (W.D.
Wash.) (no requirement that arbitration agreement “explicitly identify the dispute
resolution procedures as arbitration”); Powderly v. Metrabyte Corp., 866 F.Supp. 39, 42 (D.
Mass. 1994) (“[U]se of the term arbitrate is not a vital ingredient of an agreement to do so”);
Perceptics Corp. v. Societe Electronique et Systemes Trindel, 907 F.Supp. 1139, 1142 (E.D. Tenn.
1992) (“No particular language is required to evidence an agreement to arbitrate”);
Halliburton Co. v. KBR, Inc., 446 S.W.3d 551, 560 (Tex. App. 2014) (“[W]e conclude that the
procedure outlined in §8.11 of the TSA ‘is arbitration in everything but name’ …”) (quoting
Fit Tech, Inc., 374 F.3d at 7); Gale Group, Inc. v. Westinghouse Elec. Corp., 683 So.2d 661, 663
(Fla. App. 1996) (“The words ‘arbitrate’ or ‘arbitration’ are not required to be expressly
written in a contract to constitute a valid arbitration agreement”). See also §2.02[C][2][a];
§2.02[D].
92) See, e.g., David Wilson Homes Ltd v. Survey Servs. Ltd [2001] BLR 267, ¶11 (English Ct. App.)
(absence of words “arbitrator” and “arbitration” from parties’ agreement not decisive);
Wilky Prop. Holdings plc v. London & Surrey Invs. Ltd [2011] EWHC 2226, ¶27 (Ch) (English
High Ct.) (“The way in which the dispute resolution process is described or labelled by the
parties in their agreement is not conclusive as to the true character of that process”); AIG
Europe AG v. QBE Int’l Ins. Ltd [2001] 2 Lloyd’s Rep. 268, ¶9 (QB) (English High Ct.);
Walkinshaw v. Diniz [2000] 2 All ER 237, 255 (Comm) (English High Ct.); Cott UK Ltd v. Barber
[1997] 3 All ER 540, 545 (QB) (English High Ct.).
93) See, e.g., PT Tugu Pratama Indonesia v. Magma Nusantara Ltd, [2003] SGHC 204, ¶43
(Singapore High Ct.) (clause referring to “appraiser” held arbitration agreement);
Northbuild Constrs. Pty Ltd v. Discovery Beach Project Pty Ltd, [2009] QCA 345, ¶49
(Queensland Sup. Ct.); Methanex Motunui Ltd v. Spellman, [2004] 1 NZLR 95, ¶52 (Auckland
High Ct.) (provision for appointment of expert treated as arbitration).
94) See, e.g., Judgment of 15 December 2010, Générale Motors France v. Champs de Mars
Automobile AS , 2011 Rev. Arb. 435, 436 (French Cour de Cassation Civ. 1); Judgment of 3
January 2023, DFT 4A_294/2022, ¶3.1.2. (Swiss Fed. Trib.); Judgment of 22 December 2022, DFT
4A_232/2022, ¶5.2.2. (Swiss Fed. Trib.); Judgment of 26 November 1991, DFT 117 IA 365, 367-68
(Swiss Fed. Trib.); Judgment of 28 November 2013, 2014 NJW-RR 405 (Oberlandesgericht
Brandenburg); Judgment of 13 March 2008, 16 Sch 04/07 (Oberlandesgericht Schleswig-
Holstein) (“arbitration expert clause” held to be arbitration agreement); Judgment of 7
August 2006, 2006 SchiedsVZ 286, 288 (Oberlandesgericht München) (provision in articles of
association of limited partnership providing that advisory board should act as “arbitral
tribunal” in certain cases is reference to expert determination); Judgement of 26 April 2016,
Case RESp No. 1.569.422 (Brazilian Superior Tribunal de Justiça).

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All rights reserved, including rights for text and data mining, AI training, and similar technologies.
 95) See, e.g., OnPointe Cmty. Care LV LLC v. Charter Health Holdings, Inc., 2023 WL 4549319, at *6
n.5 (D. Nev.) (“While [the clause] does not explicitly use the term arbitration, the use of
language requiring the parties submit their dispute ... to the binding determination of a
third-party accounting firm evinces an intent to arbitrate”); Dynasty Stainless Steel & Metal
Indus., Inc. v. Hill Int’l, Inc., 2018 WL 4259776, at *4 (E.D.N.Y.) (“Courts have generally
concluded that ‘[n]o magic words such as “arbitrate” or “binding arbitration” or “final
dispute resolution” are needed to obtain the benefits of the [FAA]’”) (quoting AMF Inc. v.
Brunswick Corp., 621 F.Supp. 456, 460 (E.D.N.Y. 1985)); Bakoss v. Certain Underwriters at
Lloyds of London, 2011 WL 4529668, at *6 (E.D.N.Y.) (term arbitration “eludes easy
definition,” but agreement calls for arbitration if it requires “third-party” to “settle[]”
dispute between parties, without necessarily mentioning “arbitrate,” “binding arbitration,”
or “final dispute resolution”); Perceptics Corp. v. Societe Electronique et Systemes Trindel,
907 F.Supp. 1139, 1141-43 (E.D. Tenn. 1992) (language providing that agreement shall be
governed “by and under the jurisdiction of the International Chamber of Commerce” is
agreement to arbitrate because ICC Rules “are rules for the … arbitration of commercial
disputes”); Campeau Corp. v. May Dep’t Stores Co., 723 F.Supp. 224, 227-29 (S.D.N.Y. 1989)
(language in schedule attached to agreement for sale of corporate assets provided, in part,
that any dispute concerning calculations made under pricing formula would be resolved
conclusively “by an independent accounting firm of nationally recognized standing”
selected by parties’ auditors is agreement to arbitrate); High Valley Homes, Inc. v. Fudge,
2003 WL 1882261, at *4 (Tex. App.) (although contract contained term “mediation,” contract
read as a whole manifested an agreement to submit disputes to binding arbitration, in
part because term “mediation” was qualified by terms “mandatory” and “binding”); MS
Indtel Tech. Servs. v. W.S. Atkins plc, [2008] 10 SCC 308, ¶19 (Indian S.Ct.) (“[M]ere use of the
words ‘arbitration’ or ‘arbitrator’ will not make [a clause] an arbitration agreement”).
For an extreme example, see Woodward Pipeline Inc. v. Reliance Pipeline Co. Inc., 776 S.W.2d
241, 243-44 (Tex. App. 1989) (agreement with provision for “Board of Experts,” who “shall not
be deemed to be arbitrators but shall render their decision as experts and … the Law
relating to arbitrators shall not apply to such experts or their determination” is subject to
FAA because “use of [the] word ‘shall’ … weighs greatly in favor of construing this article as
requiring compulsory arbitration”).
96) Taylor v. Yielding [1912] 56 Sol Jo 253, 253 (Ch) (English High Ct.).
97) Schofield v. Int’l Dev. Group Co., 2006 WL 504058, at *2 (W.D. Tex.).
98) Benson Pump Co. v. S. Cent. Pool Supply, Inc., 325 F.Supp.2d 1152, 1156 (D. Nev. 2004).
99) See, e.g., Münch, in W. Krüger & T. Rauscher (eds.), Münchener Kommentar zur
Zivilprozessordnung Vorbemerkung zu §1025, ¶100 (6th ed. 2022) (“The wording is in no case
decisive … not even as a first indication”); Mackay, Arbitration, in H. Halvey et al. (eds.),
Halsbury’s Laws of England 451, ¶513 n.2 (5th ed. 2017) (“It is not necessary that the
arbitration agreement should say in terms that the disputes are to be referred to an
‘arbitrator’ or to ‘arbitration’; what matters is that the agreement should refer disputes to
a person other than the court, who is to resolve them in a manner binding on the parties to
the agreement”).
100) See, e.g., McNeil v. Haley S. Inc., 2010 WL 3670547, at *7 (E.D. Va.) (“The term arbitration must
be given its plain and ordinary meaning”); Harco Nat’l Ins. Co. v. Millenium Ins. Underwriting
Ltd, 2005 WL 2124475, at *4 (N.D. Ill.) (“[T]he phrase ‘arbitration clause’ in a contract is
sufficient to establish the parties’ agreement to arbitrate disputes”); Allianz Life Ins. Co. of
N. Am. v. Am. Phoenix Life & Reassurance Co., 2000 WL 34333013, at *3 (D. Minn.); N.C. League
of Municipalities v. Clarendon Nat’l Ins. Co., 733 F.Supp. 1009, 1011 (E.D.N.C. 1990); Judgment
of 8 July 2003, DFT 129 III 675 (Swiss Fed. Trib.) (sole arbitrator assumption that parties’
mutual intent to submit to arbitration based on term “arbitrage” in agreement was not
contested in annulment proceedings).
101) See also §1.04[E]; §2.02[D].
102) N. Blackaby, C. Partasides & A. Redfern (eds.), Redfern and Hunter on International
Arbitration ¶1.92 (7th ed. 2023).
103) de Vries, International Commercial Arbitration: A Contractual Substitute for National Courts,
57 Tul. L. Rev., 42, 42-43 (1983).
104) W. Reisman et al., International Commercial Arbitration 4 (2d ed. 2015).
105) J.-F. Poudret & S. Besson, Comparative Law of International Arbitration ¶3 (2d ed. 2007).
106) R. David, Arbitration in International Trade ¶5 (1985).
107) Wetter, The Legal Framework of International Arbitral Tribunals: Five Tentative Markings, in
H. Smit, N. Galston & S. Levitsky (eds.), International Contracts 271, 274 (1981).

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 108) Roebuck, A Short History of Arbitration, in N. Kaplan, J. Spruce & M. Moser, Hong Kong and
China Arbitration: Cases and Materials xxxv (1994).
109) W. Blackstone, III Commentaries on the Laws of England 16-17 (1768).
110) M. McIlwrath & J. Savage, International Arbitration and Mediation: A Practical Guide ¶1-015
(2010).
111) Restatement of the U.S. Law of International Commercial and Investor-State Arbitration §1-1
(2023). See also id. at comment c (“Arbitration is a method of adjudication in which the
parties submit a dispute to one or more arbitrators for a final and binding determination”).
112) J.-L. Delvolvé, G.-H. Pointon & J. Rouche, French Arbitration Law and Practice: A Dynamic Civil
Law Approach to International Arbitration ¶26 (2d ed. 2009).
113) Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 (U.S. S.Ct. 1974).
114) Methanex Motunui Ltd v. Spellman, [2004] 1 NZLR 95, 111 (Auckland High Ct.).
115) Judgment of 21 November 2003, DFT 130 III 66, 70 (Swiss Fed. Trib.). See also Judgment of 17
January 2013, DFT 4A_244/2012, ¶4.2 (Swiss Fed. Trib.) (“An arbitration clause must be
understood as an agreement by which two or more determined or determinable parties
agree to be bound to submit some existing or future disputes to an arbitral tribunal to the
exclusion of the original jurisdiction of the state courts, according to a determined or
undetermined legal order”); Judgment of 7 November 2011, DFT 4A_246/2011, ¶2.2.3 (Swiss
Fed. Trib.) (same).
116) Judgment of 3 March 1992, Europe Immobilière v. Ofer , 1993 Rev. Arb. 123, 123 (Paris Cour
d’Appel).
117) Judgment of 5 December 1985, 1986 NJW-RR 1059, 1060 (German Bundesgerichtshof);
Judgment of 3 July 1975, 1976 NJW 109, 109 (German Bundesgerichtshof).
118) Judgment of 19 April 2017, Case No. SEC 9412 (Brazilian Superior Tribunal de Justiça)
(arbitration is “a private form of settling disputes, with no provision for recourse to a
second instance and the possibility, in theory, of any capable person being an arbitrator”);
Judgment of 30 January 2008, Inepar Indústria e Construções v. Itiquira Energética SA , XXXIII
Y.B. Comm. Arb. 404, 405 (Brazilian Superior Tribunal de Justiça) (2008).
119) See, e.g., Evanston Ins. Co. v. Cogswell Props., LLC, 683 F.3d 684, 693 (6th Cir. 2012) (“‘Central
to any conception of classic arbitration is that the disputants empowered a third party to
render a decision settling their dispute’”) (quoting Salt Lake Tribune Publ’g Co., LCC v. Mgt
Planning, Inc., 390 F.3d 684, 689 (10th Cir. 2004)); Okonowski v. Certain Underwriters at
Lloyd’s, London, 2023 WL 3572845, at *13 (E.D. Mich.) (whether there was “an agreement to
arbitrate ‘under the FAA depends upon how closely it resembles classic arbitration.’ The
common arbitration agreement includes ‘(1) a final, binding remedy by a third party; (2) an
independent adjudicator; (3) substantive standards; and (4) an opportunity for each side to
present its case’”); Boyden v. Lamb, 152 Mass. 416, 418 (Mass. 1890) (“Arbitration is a
substitution by consent of parties of another tribunal for those provided by the ordinary
processes of law”); People ex rel. Bliss v. Bd of Supervisors of Cortland County, 15 N.Y.S. 748,
750 (N.Y. Sup. Ct. 1891) (arbitration is “judicial investigation out of court”); von Hoffman v.
Finanzamt Trier, Case No. C-145/96, [1997] E.C.R. I-4857, ¶17 (E.C.J.) (“[T]he services of an
arbitrator are principally and habitually those of settling a dispute between two or more
parties”); Judgment of 23 May 2019, Mantenimientos y Servicios Integrales, SA de CV, Case No.
62/2019 (Mexican Tribunal Colegiado de Circuito); Judgment of 2 August 2006, Tanning
Research Labs., Inc. v. Hawaiian Tropic de Venezuela CA , XXXIII Y.B. Comm. Arb. 1228, ¶20
(Venezuelan Juzgado Sexto de Primera Instancia) (2008) (“[A] means of procedural
settlement of disputes by a third person that runs parallel to traditional jurisdiction, that
is, the State’s power to settle disputes through its judicial organs”); Carlston, Theory of the
Arbitration Process, 17 Law & Contemp. Probs. 631, 632 (1952) (“[A]rbitration is a means, a
method, a procedure, rather than an agreement”); C. Jarrosson, La Notion d’Arbitrage ¶785
(1987) (“[T]he institution by which a third party rules on the dispute between two or more
parties, exerting the jurisdictional mission with which these parties have entrusted him”);
Mentschikoff, The Significance of Arbitration: A Preliminary Inquiry, 17 Law & Contemp. Probs.
698, 699 (1952) (“The four essential aspects of arbitration are (1) it is resorted to only by
agreement of the parties; (2) it is a method not of compromising disputes but of deciding
them; (3) the person making the decision has no formal connection with our system of
courts; but (4) before the award is known it is agreed to be ‘final and binding”); Kenyan
Arbitration Act (arbitration refers to “an agreement by the parties to submit to arbitration
all or certain disputes which have arisen or which may arise between them in respect of a
defined legal relationship, whether contractual or not”).

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 120) Defining arbitration as a “method for the relatively private settlement of disputes” or a
“procedure other than litigation” sweeps too broadly (by including conciliation, mediation,
expert determination and (even) some litigations). It also fails to address the adjudicative
or quasi-judicial nature of arbitral proceedings and the non-governmental character of an
arbitrator. Arbitration need not be private or “relatively” private, but it must involve the
use of adjudicatory procedures. See §2.02[C][4]; §20.01.
121) New York Convention, Arts. II(1), (3) (emphasis added). See §1.04[A][1][c]; §2.01[B][1]. The
same is true of Article 1 of the Inter-American Convention. See §1.04[A][3].
122) UNCITRAL Model Law, Arts. 7(1), 8(1) (emphasis added). See also Bantekas, Article 8:
Arbitration Agreement and Substantive Claim Before Court, in I. Bantekas et al. (eds.),
UNCITRAL Model Law on International Commercial Arbitration: A Commentary 141 (2020). See
§2.02[B].
123) See §2.01[A][2]. See, e.g., U.S. FAA, 9 U.S.C. §2; English Arbitration Act, 1996, §5; French Code
of Civil Procedure, Art. 1442; German ZPO, §1029; Japanese Arbitration Law, Art. 13.
124) Dell Computer Corp. v. Union des Consommateurs, [2007] SCC 34, ¶51 (Canadian S.Ct.).
125) Granite Rock Co. v. Int’l Bhd of Teamsters, 561 U.S. 287, 299 (U.S. S.Ct. 2010) (emphasis
added) (quoting Volt Info. Sciences, Inc. v. Stanford Univ., 489 U.S. 468, 475-76 (U.S. S.Ct.
1989)); First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (U.S. S.Ct. 1995).
126) IMC Aviation Solutions Pty Ltd v. Altain Khuder LLC, [2011] VSCA 248, ¶154 (Victoria Ct. App.).

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 127) See, e.g., Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S.Ct. 524, 528 (U.S. S.Ct. 2019)
(“Under the [FAA], arbitration is a matter of contract, and courts must enforce arbitration
contracts according to their terms”); Stolt-Nielsen SA v. AnimalFeeds Int’l Corp., 559 U.S. 663,
664 (U.S. S.Ct. 2010) (“[T]he basic precept that arbitration ‘is a matter of consent, not
coercion’”) (quoting Volt Info. Sciences, Inc. v. Stanford Univ., 489 U.S. 468, 479 (U.S. S.Ct.
1989)); Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (U.S. S.Ct. 2002) (“‘[A]rbitration is
a matter of contract and a party cannot be required to submit to arbitration any dispute
which he has not agreed so to submit’”) (quoting Steelworkers v. Warrior & Gulf Navigation
Co., 363 U.S. 574, 582 (U.S. S.Ct. 1960)); AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S.
643, 648 (U.S. S.Ct. 1986); World Crisa Corp. v. Armstrong, 129 F.3d 71, 74 (2d Cir. 1997)
(“Arbitration is essentially contractual, however, and parties may not be forced into
arbitration if that was not their true agreement”); Okonowski v. Certain Underwriters at
Lloyd’s, London, 2023 WL 3572845, at *12 (E.D. Mich.) (“‘A longstanding principle ... is that no
matter how strong the federal policy favors arbitration, ‘arbitration is a matter of contract
between the parties, and one cannot be required to submit to arbitration a dispute which
it has not agreed to submit to arbitration.’ ‘An [alleged] arbitration clause should be
interpreted consistent with the terms of the agreement and should be enforced in the
same manner as any other privately negotiated contract’”) (quoting Simon v. Pfizer Inc., 398
F.3d 765, 775 (6th Cir. 2005) & Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., 383 F.
App’x 517, 520 (6th Cir. 2010)); Reily v. Russell, 34 Mo. 524, 528 (Mo. 1864) (arbitration rests on
“the will and consent of the parties litigant”); Dallah Real Estate & Tourism Holding Co. v.
Ministry of Religious Affairs, Pakistan [2010] UKSC 763, 810 (U.K. S.Ct.) (“Arbitration of the
kind with which this appeal is concerned is consensual – the manifestation of parties’
choice to submit present or future issues between them to arbitration”); Baytur SA v.
Finagro Holding SA [1991] 3 WLR 866, 872 (English Ct. App.) (“nature of arbitration as a
consensual method of settling disputes”); Judgment of 23 June 2015, Case No. 15-21.880
(French Cour de Cassation) (“[The existence of a] nonsignatory to a contract containing [an
arbitration agreement] is incompatible with the requirement of a written agreement set
forth in Article 2, § 2, of the 1958 New York Convention ..., applicable in this case”);
Judgment of 8 July 2003, DFT 129 III 675, 679-80 (Swiss Fed. Trib.); C v. D [2023] HKCFA 16 ¶40
(H.K. Ct. Fin. App.) (“[A]rbitrations are consensual. The tribunal’s authority or jurisdiction to
conduct the arbitration rests entirely on the parties’ consent expressed in the arbitration
agreement”); TCL Air Conditioner (Zhongshan) Co. Ltd v. Judges of Fed. Ct. of Australia, [2013]
HCA 5, ¶31 (Australian High Ct.) (“The making of an arbitral award, which is recognised as
binding on the parties from the time it is made by force of Art 35 of the Model Law, is not
an exercise of the judicial power of the Commonwealth. That is because the existence and
scope of the authority to make the arbitral award is founded on the agreement of the
parties in an arbitration agreement. The exercise of that authority by an arbitral tribunal
to determine the dispute submitted to arbitration for that reason lacks the essential
foundation for the existence of judicial power”); Judgment of 1 February 2022, Case No. S
21/334, Decision No. 68 (Turku Ct. App.) (“It is evident that the parties have intended that
the disputes be settled by arbitration, since the agreement contains a provision for
arbitration. The fact that the arbitration clause designates a chamber of commerce which
does not have an arbitration committee, does not render the said intention of the
arbitration committee ineffective”); Judgment of 18 February 2014, Case No.
1630/06.2YRCBR.C2.S1 (Portuguese Supremo Tribunal de Justiça); Lufuno Mphaphuli &
Assocs. Pty Ltd v. Andrews, [2009] ZACC 6, ¶217 (S. African Const. Ct.) (“must be consensual –
no party may be compelled into private arbitration”); Judgment of 8 May 2018, Case No.
REsp 1698730 (Brazilian Superior Tribunal de Justica) (“The basis of arbitration lies in the
autonomy of will of the parties, who consciously and voluntarily waive the state
jurisdiction, electing a third party, the arbitrator, to resolve any conflict arising from the
underlying contractual relationship. This consent to arbitration, which is sought to be
protected, may be presented not only expressly, but also tacitly”); Judgment of 5 March
2009, Indutech SpA v. Algocentro Armazéns Gerais Ltda , XXXIV Y.B. Comm. Arb. 424
(Brazilian Superior Tribunal de Justiça) (2009) (absence of unequivocal demonstration of
party’s consent to arbitration violates public policy); Judgment of 10 September 2020, Case
No. 2019/532, Decision No. 2020/892 (Istanbul Regional Ct.) (“For the validity of an
arbitration clause, the parties’ intention to resolve their disputes through arbitration must
be clear and without hesitation since arbitration is an exceptional dispute resolution
method”).

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 128) See §2.03[D]. See also Hartford Fire Ins. Co. v. Jones, 108 So.2d 571, 572 (Miss. 1959)
(“[A]rbitration presupposes the existence of a dispute or controversy to be tried”); Sutcliffe
v. Thackrah (1974) 1 All ER 859, 870 (House of Lords) (“One of the features of an arbitration is
that there is a dispute between two or more persons who agree that they will refer their
dispute to the adjudication of some selected person whose decision upon the matter they
agree to accept”); Sport Maska Inc. v. Zittrer, [1988] 1 SCR 564, ¶48 (Canadian S.Ct.) (“The
common law has in fact developed two concepts which it regards as characteristic of
arbitration: the existence of a dispute and the duty or intent of the parties, as the case
may be, to submit that dispute to arbitration”); Judgment of 26 March 2019, Case No. REsp
1.660.963 (Brazilian Superior Tribunal de Justiça) (parties “elect a third party - the
arbitrator, who can be any person who has, naturally, the confidence of the parties - to
definitively settle the controversy submitted to him”); Judgment of 23 May 2019,
Mantenimientos y Servicios Integrales, SA de CV, Case No. 62/2019 (Mexican Tribunal
Colegiado de Circuito) (arbitration “stems from the express agreement between two or
more parties to resolve disputes that arise or have arisen between them”). See also E.
Gaillard & J. Savage (eds.), Fouchard Gaillard Goldman on International Commercial
Arbitration ¶11 (1999) (“[A]rbitration should be defined by reference to two constituent
elements. … First, the arbitrators’ task is to resolve a dispute”); J.B. Racine, Droit de
l’Arbitrage ¶10 (2016) (“The first criterion [of arbitration] is the existence of a dispute. … In
a few words, no dispute, no arbitration!”); R. Schütze & R. Thümmel, Schiedsgericht und
Schiedsverfahren ¶7 (7th ed. 2021) (“The arbitral tribunal is a private tribunal having
genuine dispute resolution function”).
129) New York Convention, Art. II(1). See §2.03[D]. See also Inter-American Convention, Art. 1;
European Convention, Art. I(a).
130) UNCITRAL Model Law, Art. 7(1).
131) AES Corp. v. Argentina, Decision on Jurisdiction in ICSID Case No. ARB/02/17 of 26 April 2005,
¶43 (“There are, in substance, two elements to be met for a dispute to be considered as a
legal one in conformity with the requirement set forth in Article 25(1) of the ICSID
Convention”); C. Schreuer et al., The ICSID Convention: A Commentary 94 (2d ed. 2009) (“The
disagreement between the parties must also have some practical relevance to their
relationship and must not be purely theoretical. It is not the task of the Centre to clarify
legal questions in abstracto”).
132) Unusually, a few national arbitration statutes define arbitration more broadly, to include
processes in addition to resolution of disputes. See, e.g., Netherlands Code of Civil
Procedure, Art. 1020(4) (“Parties may also agree to submit the following matters to
arbitration: (a) the determination only of the quality or condition of goods; (b) the
determination only of the quantum of damages or monetary debt; (c) the filling of gaps, or
modification of, the legal relationship between the parties referred to in paragraph (1)”);
Swedish Arbitration Act, §1(2) (“In addition to interpreting agreements, the filling of gaps in
contracts can also be referred to arbitrators”), §1(3) (“Arbitrators may rule on the civil law
effects of competition law as between the parties”); Bulgarian Arbitration Law, Art. 1(2)
(“International commercial arbitration shall resolve civil property disputes resulting from
international trade relations as well as disputes for filling gaps in contracts or their
adaptation to newly established facts when the domicile or seat of at least one of the
parties is not within the territory of the Republic of Bulgaria”).
133) As discussed below, an “arbitral tribunal” also generally includes emergency arbitrators.
See §17.02. The national arbitration legislation of some States has been amended to make
this explicit and to include the enforcement of emergency relief granted by an emergency
arbitrator. See, e.g., Singapore International Arbitration Act, §2(1); Hong Kong Arbitration
Ordinance, §§22A-22B; New Zealand Arbitration Act, Art. 2(1)(b); Bolivian Conciliation and
Arbitration Law, Arts. 67-71; Fijian International Arbitration Act, §2; Malaysian Arbitration
Act, §2(1).
Even absent such legislation, the better view is that an emergency arbitrator is an
“arbitrator” and an emergency arbitration is an “arbitration.” See §17.02.

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 134) See, e.g., Travelers Cas. Ins. Co. of Am. v. Papagiannopoulous, 2023 WL 4826184, at *6 (D. Md.)
(in determining whether a provision “constitutes an enforceable arbitration clause under
the FAA, thereby triggering the FAA, ‘[i]t is ... irrelevant that the contract language in
question does not employ the word ‘arbitration’ as such. Rather, what is important is
[whether] the parties clearly intended to submit some disputes to binding review by a
third party’”) (quoting Liberty Mut. Group, Inc. v. Wright, 2012 WL 718857, at *5 (D. Md.));
Bakoss v. Certain Underwriters at Lloyds of London, 2011 WL 4529668, at *6 (E.D.N.Y.)
(“[‘arbitration’] eludes easy definition,” but agreement calls for arbitration if it requires
“third-party” to “settle[]” dispute between parties, without necessarily mentioning “magic
words such as ‘arbitrate’ or ‘binding arbitration’ or ‘final dispute resolution’”; third
physician provision in insurance contract requiring neutral third physician to settle
disagreements between party-appointed physicians was arbitration agreement); In re
Curtis, 30 A. 769, 770 (Conn. 1894) (“an arrangement for taking and abiding by the judgment
of selected persons in some disputed matter”); Boyden v. Lamb, 152 Mass. 416, 419 (Mass.
1890) (“[A]rbitration is a substitution by consent of parties of another tribunal for those
provided by the ordinary processes of law”); Lindsay v. Lewandowski, 43 Cal.Rptr.3d 846,
850 (Cal. Ct. App. 2006) (“[C]haracteristics of an arbitration agreement are: ‘(1) a third party
decision maker; (2) a mechanism for ensuring neutrality with respect to the rendering of
the decision; (3) a decision maker who is chosen by the parties; (4) an opportunity for both
parties to be heard, and (5) a binding decision’”) (quoting Cheng-Canindin v. Renaissance
Hotel Assocs., 50 Cal.App.4th 676 (Cal. Ct. App. 1996)); People ex rel. Bliss v. Bd of Supervisors
of Cortland County, 15 N.Y.S. 748, 750 (N.Y. Sup. Ct. 1891) (“judicial investigation out of
court”); Judgment of 21 November 2003, DFT 130 III 66, 70 (Swiss Fed. Trib.) (“Consistent with
the traditional notion of private arbitration, one may define [the arbitration clause] as an
agreement according to which two or more specific or determinable parties agree in a
binding way to submit one or several existing or defined future disputes to an arbitral
tribunal, to the exclusion of the original competence of state courts and subject to a
(directly or indirectly) determinable legal system”); Judgment of 29 April 2021, 9 ObA 47/20g
(Austrian Oberster Gerichtshof) (an arbitration clause provides that “the arbitral tribunal
has to decide the matter instead of the state court”); Judgment of 15 May 2019, Case No. SEC
14.930 (Brazilian Superior Tribunal de Justiça); Judgment of 19 April 2017, Case No. SEC 9412
(Brazilian Superior Tribunal de Justiça)(“Article 13 of the Arbitration Law states that any
person who is capable and has the ‘confidence of the parties’ may be an arbitrator”);
Judgment of 23 May 2019, Mantenimientos y Servicios Integrales, SA de CV, Case No. 62/2019
(Mexican Tribunal Colegiado de Circuito) (arbitration’s “specific purpose is to vest
authority in a third party to resolve a dispute that can be subtracted from the state
jurisdictional sphere”); Judgment of 2 August 2006, Tanning Research Labs., Inc. v. Hawaiian
Tropic de Venezuela CA , XXXIII Y.B. Comm. Arb. 1228, ¶20 (Venezuelan Juzgado Sexto de
Primera Instancia) (2008) (“[A] means of procedural settlement of disputes by a third
person that runs parallel to traditional jurisdiction, that is, the State’s power to settle
disputes through its judicial organs”). See also C. Jarrosson, La Notion d’Arbitrage ¶785
(1987) (“[T]he institution by which a third party rules on the dispute between two or more
parties, exerting the jurisdictional mission with which these parties have entrusted him”).
See also Restatement of the U.S. Law of International Commercial and Investor-State
Arbitration §1.1(b) (2023) (“An ‘arbitral tribunal’ is a body consisting of one or more persons
designated directly or indirectly by the parties to an arbitration agreement and
empowered by them to adjudicate a dispute that has arisen between or among them”); R.
Schütze, Schiedsgericht und Schiedsverfahren ¶6 (6th ed. 2016) (“Parties may … agree to
submit certain disputes to an arbitral tribunal instead of state courts”).
135) Judgment of 3 July 1975, 1976 NJW 109, 109 (German Bundesgerichtshof). See also Judgment of
5 December 1985, 1986 NJW-RR 1059, 1060 (German Bundesgerichtshof).
136) See §1.04[E][5]; §12.03[B][1]. In cases when no agreement on either the arbitrator(s) or an
institutional appointing authority is possible, national courts can provide a default
mechanism for appointment of arbitrators. See Award in ICC Case No. 14581, in J.-J. Arnaldez,
Y. Derains & D. Hascher (eds.), Collection of ICC Arbitral Awards 2012-2015 33 (2019); §12.03[B]
[2] .
137) See §2.02[C][2][a].

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 138) See §25.04. See also Advanced Bodycare Solutions v. Thione, 524 F.3d 1235, 1239 (11th Cir.
2008) (“If a dispute resolution procedure does not produce some type of award that can be
meaningfully confirmed, modified, or vacated by a court upon proper motion, it is not
arbitration within the scope of the FAA”); Dow Corning Corp. v. Safety Nat’l Cas. Corp., 335
F.3d 742, 745 (8th Cir. 2003) (“Arbitration usually results in a final determination that is
binding on the parties to the underlying dispute, but the parties may instead agree to non-
binding arbitration, in which case the arbitrators’ decision is likely to be a precursor to
further litigation on the merits of the dispute. The distinction is significant. ‘Mandatory
arbitration prior to resort to a court is a different concept from mandatory arbitration
precluding resort to a court’”) (quoting Orlando v. Interstate Container Corp., 100 F.3d 296,
300 (3d Cir. 1996)); Methanex Motunui Ltd v. Spellman, [2004] 1 NZLR 95, ¶41 (Auckland High
Ct.) (“By their contract the parties agree to entrust the differences between them to the
decision of an arbitrator or panel of arbitrators, to the exclusion of the Courts, and they
bind themselves to accept that decision, once made, whether or not they think it right”);
Judgment of 22 September 2016, Case No. 660.15.8YRLSB.L1.S1 (Portuguese Superior Tribunal
de Justiça) (“The adoption of the principle of finality of the arbitral award is thus a matter
of the identity and culture of arbitration”); Judgment of 5 August 2021, Milantic Trans SA v.
Ministerio de la Producción, Case No. CSJ 1460/2016/CS1 (Argentine Corte Suprema de
Justicia de la Nación); Judgment 26 March 2019, Case No. REsp 1.660.963-SP (Brazilian
Superior Tribunal de Justiça); Judgment of 15 August 2019, Internacional de Cerámica, SAB de
CV, Case No. 34/2019 (Mexican Tribunal Colegiado de Circuito). See also N. Blackaby, C.
Partasides & A. redfern (eds.), Redfern and Hunter on International Arbitration ¶1.04 (7th ed.
2023) (“[The arbitrator’s] decision is final and binding on the parties – and it is final and
binding because the parties have agreed that it should be, rather than because of the
coercive power of any state. Arbitration, in short, is an effective way of obtaining a final
and binding decision on a dispute, or series of disputes, without reference to a court of
law”); E. Gaillard & J. Savage (eds.), Fouchard Gaillard Goldman on International Commercial
Arbitration ¶15 (1999) (“An arbitral award will bind the parties to the arbitration.
Arbitration can therefore be easily distinguished from other procedures where the
intervention of a third party does not culminate in a binding decision”); J-B. Racine, Droit
de l’Arbitrage ¶13 (2016) (“There is indeed arbitration when the appointed third party
renders a decision that binds the parties. There is no arbitration in the opposite situation,
when the third party issues a mere opinion which is not binding on the parties”).
139) See §2.02[C][2][c]. See also Salt Lake Tribune Publ’g Co., LLC v. Mgt Planning, Inc., 390 F.3d
684, 689-90 (10th Cir. 2004) (“[O]ne feature that must necessarily appertain to a process to
render it an arbitration is that the third party’s decision will settle the dispute”); Lander
Co. v. MMP Invs., Inc., 107 F.3d 476, 480 (7th Cir. 1997) (“To agree to binding arbitration is to
agree that if your opponent wins the arbitration he can obtain judicial relief if you refuse
to comply with the arbitrator’s award”); Marshall v. Human Servs. of S.E. Tex., 2023 WL
1818214, at *4 (E.D. Tex) (“[P]arties agree to binding arbitration when their agreement to
arbitrate provides that the arbitration award will be ‘final and binding’”); SEI Societa
Esplosivi Industriali SpA v. L-3 Fuzing & Ordnance Sys., Inc., 843 F.Supp.2d 509, 514 (D. Del.
2012) (“One of the features of arbitration is that the parties agree that the arbitrator will
resolve their dispute, subject to extremely limited judicial review. Arbitration is thought to
be more expeditious and less expensive than litigation through the courts. The arbitrator’s
factual and legal conclusions are not subject to the same sort of review that an appellate
court would give to a trial court. The public policy exception is a very narrow one, and it is
not a back door through which to take claimed errors of contract law that cannot be taken
through the front door”); Heenan v. Sobati, 117 Cal.Rptr.2d 532, 535-36 (Cal. Ct. App. 2002)
(“California law provides for two kinds of arbitrations – nonbinding judicial arbitration
under the Judicial Arbitration Act … and binding contractual arbitration under the
California Arbitration Act. … In contrast to contractual arbitration, judicial arbitration is
not arbitration at all, since it does not result in a final decision, there is full and complete
discovery, the arbitrator is required to follow the facts and the law, and the parties may
ask for a trial de novo”); Mentschikoff, The Significance of Arbitration: A Preliminary Inquiry,
17 Law & Contemp. Probs. 698, 699 (1952) (“The decisional nature of arbitration is what
distinguishes it from the more informal types of settlement with which we are all familiar
and makes it true kin to our court process”).

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 140) See, e.g., Dluhos v. Strasberg, 321 F.3d 365 (3d Cir. 2003) (1999 Internet Corporation for
Assigned Names and Numbers (“ICANN”) Uniform Domain Name Dispute Resolution Policy
(“UDRP”) is not arbitration and decision of UDRP is not arbitral award because parties
remain free to initiate litigation); Fowler v. Merrill Lynch, X Y.B. Comm. Arb. 499, 503 (English
High Ct. 1982) (1985) (agreement is either not an arbitration agreement at all, or one that is
inoperative or incapable of being performed, where it does not permit arbitration while
parallel proceedings in national court are pending); Ju d gment of 1 December 2021,
Monómeros Colombo Venezolanos SA v. Nextech Corp., Case No. SC5288-2021 (Colombian
Corte Suprema de Justicia) (“[T]he arbitral award results from the jurisdictional activity
that settles the dispute with a definitive, binding and res judicata effect”); Judgment of 23
May 2019, Mantenimientos y Servicios Integrales, SA de CV, Case No. 62/2019 (Mexican
Tribunal Colegiado de Circuito) (arbitral award “shall have binding effect with respect to
both parties”). Compare Judgment of 25 January 2019, 2019 BeckRS, 40197
(Oberlandesgericht Bremen) (confirming validity of agreement which allowed parties to
choose between arbitration and litigation).
141) See, e.g., Salt Lake Tribune Publ’g Co., LLC v. Mgt Planning, Inc., 390 F.3d 684, 689 (10th Cir.
2004) (“[O]ne feature that must necessarily appertain to a process to render it an
arbitration is that the third party’s decision will settle the dispute”); Auto-Homeowners Ins.
Co. v. Summit Park Townhome Ass’n, 129 F.Supp.3d 1150, 1153 (D. Colo. 2015) (“Central to any
conception of classic arbitration is that the disputants empowered a third party to render
a decision settling their dispute … ‘through to completion’”) (quoting Salt Lake Tribune, 390
F.3d at 689-90); IS Prime Ltd v. TF Global Markets (UK) Ltd [2020] EWHC 3375, ¶45 (Comm)
(English High Ct.) (arbitration entails process “intended to result in a decision, binding the
parties so as to determine their legal rights in respect of the claims, controversies or
disputes referred”); Walkinshaw v. Diniz [2000] 2 All ER 237, 254 (Comm) (English High Ct.)
(agreement “must contemplate that the tribunal which carries on the process will make a
decision which is binding on the parties”); Judgment of 17 June 2004, Le Parmentier v. La
Société Miss France , XXX Y.B. Comm. Arb. 119, 123-24 (Paris Cour d’Appel) (2005) (expert
assessment subject to review by domestic court does not constitute arbitration).
142) Harrell’s, LLC v. Agrium Advanced (U.S.) Tech., Inc., 795 F.Supp.2d 1321, 1328 (M.D. Fla. 2011).
143) See §1.02[B][3]; §26.03.
144) See T. Cook & A. Garcia, International Intellectual Property Arbitration 67 (2010) (“[I]n
essence, arbitration only binds the parties to the proceedings, that is it has inter partes
effect only. National law can expressly extend the effect of arbitral awards so that they
have erga omnes effect, but this is quite exceptional”); Rosenthal, IP & IT Arbitration in
Switzerland , in M. Arroyo (ed.), Arbitration in Switzerland: The Practitioner’s Guide 925, 962-67
(2d ed. 2018) (“[I]n the case of IP disputes, the inter-partes-only effect of an arbitral award
is far from clear. … In common law jurisdictions, for instance, it may be possible to
overcome an inter partes limitation of an arbitral award in an IP dispute on the doctrine of
non-mutual collateral estoppel, or issue preclusion”).
145) See, e.g., §2.02[C][2]; Portland Gen. Elec. Co. v. U.S. Bank Trust Nat’l Ass’n, 218 F.3d 1085, 1090
(9th Cir. 2000) (“[A]rbitration agreements permit arbitrators to resolve pending disputes
between the parties and to determine ultimate liability, generally through adversary
hearings at which evidence is admitted and the arbitrator plays a quasi-judicial role”);
Walkinshaw v. Diniz [2000] 2 All ER 237, 254 (Comm) (English High Ct.) (“It is a characteristic
of arbitration that the parties should have a proper opportunity of presenting their case”);
MacDonald Estates plc v. Nat’l Car Parks Ltd, [2009] CSIH 79, ¶26 (Scottish Ct. Session) (“The
words ‘acting as an expert’ are normally used in legal practice in contradistinction to the
words ‘acting as an arbiter.’ They signify that the decision-maker is to base his decision on
his own expertise, rather than adjudicating between competing contentions and bodies of
evidence: that is to say, he is to make an expert determination rather than to conduct an
arbitration”).

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 146) See, e.g., Evanston Ins. Co. v. Cogswell Props. LLC, 683 F.3d 684, 693-94 (6th Cir. 2012) (policy
that does not “provide for a final and binding remedy by a neutral third party” but allows
one party to retain its right to deny the claim “does not constitute arbitration”); Auto-
Homeowners Ins. Co. v. Summit Park Townhome Ass’n, 129 F.Supp.3d 1150, 1154 (D. Colo.
2015) (appraisal is not arbitration because it would not resolve all disputes between
parties, and one party retained right to deny claim); AMF Inc. v. Brunswick Corp., 621
F.Supp. 456, 460 (E.D.N.Y. 1985) (“Arbitration is a creature of contract, a device of the
parties rather than the judicial process. If the parties have agreed to submit a dispute for a
decision by a third party, they have agreed to arbitration”) (emphasis added); N. Blackaby,
C. Partasides & A. Redfern (eds.), Redfern and Hunter on International Arbitration ¶1.04 (7th
ed. 2023) (“Arbitration is essentially a very simple method of resolving disputes. Disputants
agree to submit their disputes to an individual whose judgment they are prepared to trust.
Each puts its case to this decision maker, this private individual – in a word, this
‘arbitrator.’ He or she listens to the parties, considers the facts and the arguments, and
makes a decision”).
147) Dworkin v. Caledonian Ins. Co., 226 S.W. 846, 848 (Mo. 1920).
148) See §2.02[C][4].
149) See §2.02[C][1][b][i]; §5.04[D].
150) Forum selection agreements are discussed elsewhere. See §1.02[A][1]; G. Born, International
Arbitration and Forum Selection Agreements: Drafting and Enforcing (6th ed. 2021); G. Born &
P. Rutledge, International Civil Litigation in United States Courts 517-618 (7th ed. 2023); D.
Joseph, Jurisdiction and Arbitration Agreements and Their Enforcement ¶1.15 (3d ed. 2015); M.
McIlwrath & J. Savage, International Arbitration and Mediation: A Practical Guide ¶1-005
(2010).
151) This confusion may stem, in part, from statements like that of the U.S. Supreme Court’s
comment in Scherk v. Alberto-Culver Co., 417 U.S. 506, 507 (U.S. S.Ct. 1974), that “[a]n
agreement to arbitrate before a specified tribunal is, in effect, a specialized kind of forum
selection clause that posits not only the situs of suit but also the procedure to be used in
resolving the dispute.” This conflation of arbitration clauses on the one hand and forum
selection clauses on the other has been repeated on other occasions. See, e.g., Viking River
Cruises, Inc. v. Moriana, 142 S.Ct. 1906, 1919 (U.S. S.Ct. 2022) (“And as we have described it, an
arbitration agreement is ‘a specialized kind of forum-selection clause that posits not only
the situs of suit but also the procedure to be used in resolving the dispute.’ An arbitration
agreement thus does not alter or abridge substantive rights; it merely changes how those
rights will be processed. And so we have said that ‘[b]y agreeing to arbitrate a statutory
claim, a party does not forgo the substantive rights afforded by the statute; it only submits
to their resolution in an arbitral ... forum’”); Armstrong v. LaSalle Bank Nat’l Ass’n, 552 F.3d
613, 616 (7th Cir. 2009) (“[A]n arbitration clause is a species of forum selection clause,
reflecting an ex ante determination by the parties of the most convenient forum to resolve
disputes”); Nat’l Iranian Oil Co. v. Ashland Oil, Inc., 817 F.2d 326, 332-33 (5th Cir. 1987) (“A
forum selection clause establishing the situs of arbitration must be enforced …”); Baoding
Tianwei Group Co. Ltd v. PacifiCorp, 2008 WL 4224828, at *11 (D. Or.) (“An agreement to
arbitrate before a particular arbitrator … can also constitute a forum selection clause”);
Benefit Ass’n Int’l, Inc. v. Mount Sinai Comprehensive Cancer Ctr, 816 So.2d 164, 168 (Fla. App.
2002) (describing provision selecting arbitral seat as “forum selection clause”).
152) Publicis Commc’n v. True N. Commc’ns, Inc., 132 F.3d 363, 366 (7th Cir. 1997).

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 153) D. Bureau & H. Muir Watt, Droit International Privé ¶143 (4th ed. 2017) (“While the validity of
forum selection clauses implies that the dispute can be resolved by organs distinct from
any other state and without the need for conflict-of-law rules of the forum state, the
submission of a dispute to arbitration also implies that it can be resolved in the absence
of any reference to a specific state legal order”); G. Petrochilos, Procedural Law in
International Arbitration 27 (2004) (“[A]n arbitration clause can only loosely be called a
forum-selection clause”). See also Vimar Seguros y Reaseguros, SA v. MV Sky Reefer, 515 U.S.
528, 529 (U.S. S.Ct. 1995); Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 482-
83 (U.S. S.Ct. 1989); China N. Indus. Tianjin Corp. v. Grand Field Co. Inc., 197 F.App’x 543, 544
(9th Cir. 2006) (stipulation selecting domestic court to enforce arbitral award does not
constitute forum selection clause); Judgment of 3 June 2019, 2020 SchiedsVZ 185
(Oberlandesgericht Frankfurt) (clause providing that “The applicable law is German law.
Place of jurisdiction and performance is Friedberg (Hessen)” does not invalidate
arbitration clause in contract, as forum selection clause can be construed to apply only
courts are competent despite valid arbitration clause, e.g., setting aside proceedings).
Compare Green Power v. Spain , Award in SCC Case No. 2016/135 of 16 June 2022, 2022
SchiedsVZ 135 (“[A]n arbitral tribunal would not have jurisdiction to make determinations
on matters of State aid in the relations between EU Member States, even if the
determination were to be formulated by reference to the provisions of the ECT”).
For a discussion of the significant distinctions between both types of clauses, see G. Born,
International Arbitration and Forum Selection Agreements: Drafting and Enforcing 2-4 (6th
ed. 2021). See also Bremer Vulkan Schiffbau und Maschinenfabrik v. S. India Shipping Corp.
Ltd [1981] AC 909, 976 (House of Lords) (fact that parties agreed to arbitrate in particular
forum does not mean they agreed to litigate there); D. Joseph, Jurisdiction and Arbitration
Agreements and Their Enforcement ¶¶1.8-11 (3d ed. 2015); M. McIlwrath & J. Savage,
International Arbitration and Mediation: A Practical Guide ¶¶1-005 to 006 (2010);
Stipanowich, Rethinking American Arbitration, 63 Ind. L.J. 425, 429 (1987) (“Arbitration is
often described as everything that civil litigation is not”).
154) DDI Seamless Cylinder Int’l, Inc. v. Gen. Fire Extinguisher Corp., 14 F.3d 1163, 1165 (7th Cir.
1994) (Posner, J.).
155) See §2.02[C]; Mauritius v. U.K., Reasoned Decision on Challenge in PCA Case Under Annex VII of
the 1982 UN Convention on the Law of the Sea of 30 November 2011, ¶¶156, 165-68; China N.
Indus. Tianjin Corp. v. Grand Field Co. Inc., 197 F.App’x 543, 544 (9th Cir. 2006); AXA Re v. Ace
Global Mkts Ltd [2006] EWHC 216, ¶24 (QB) (English High Ct.) (whether clause conferred
jurisdiction upon arbitrators rather than national court depends on intent of parties, not
label used); Shell Int’l Petroleum Co. v. Coral Oil Co. Ltd [1999] 1 Lloyd’s Rep. 72, 75-76 (QB)
(English High Ct.). Compare Heenan v. Sobati, 117 Cal.Rptr.2d 532, 535-36 (Cal. Ct. App. 2002)
(judicial arbitration); Elliott & Ten Eyck P’ship v. City of Long Beach, 67 Cal.Rptr.2d 140, 140
(Cal. Ct. App. 1997). For a comparison, see Lazareff, L’Arbitre Est-il un Juge?, in Liber
Amicorum Claude Reymond 173 (2004).
156) See, e.g., Kochert v. Adagen Med. Int’l, Inc., 491 F.3d 674, 679 (7th Cir. 2007) (drawing
distinction between contract’s arbitration and forum selection clauses based on forum
selection clause’s reference to particular court); Abbott Labs. v. Takeda Pharm. Co., 476 F.3d
421, 425 (7th Cir. 2007); Omni Tech Corp. v. MPC Solutions Sales, LLC, 432 F.3d 797, 799 (7th Cir.
2005) (“Many contracts have venue or forum-selection clauses. These do not call for
‘arbitration’ but are routinely enforced, even when they send the dispute for resolution
outside the court’s jurisdiction”); DDI Seamless Cylinder Int’l, Inc. v. Gen. Fire Extinguisher
Corp., 14 F.3d 1163, 1165 (7th Cir. 1994); Heenan v. Sobati, 117 Cal.Rptr.2d 532, 535 (Cal. Ct.
App. 2002); Elliott & Ten Eyck P’ship v. City of Long Beach, 67 Cal.Rptr.2d 140, 140 (Cal. Ct.
App. 1997); India Oil Corp. v. Van Oil Inc. [1991] 2 Lloyd’s Rep. 634 (English High Ct.) (express
reference to national courts in forum selection clause prevailed arbitration clause
allegedly incorporated by reference).
157) See §1.02[B][1]; §1.04[E][5]; §12.01. Often, arbitrators will be selected pursuant to
procedures specified in a pre-existing arbitration agreement in a contract to resolve a
specific dispute after it has arisen. See §12.03. In rare cases, the preexisting arbitration
clause will specify the identity of the arbitrator(s) who will resolve future disputes under
the contract. See §12.03[C][1].
158) See §12.03[C][2].
159) See §12.03[B]; §12.03[C][2].

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 160) See §12.03[D]. There are instances in which a national court will select the arbitrator(s),
because the parties have failed either to do so or to provide a mechanism for an
appointing authority to do so. See §12.03[E]. This default appointment mechanism is best
considered as an exception, required by necessity, to preserve the parties’ agreement to
arbitrate, but not as altering the characteristics of arbitration. The judicial assistance of
national courts in selecting arbitrators is utilized only when the arbitral process has not
functioned properly, and is only exercised in order to preserve the parties’ underlying
agreement to arbitrate.
161) See §12.01[A]; §24.02.
162) See §1.02[B][4].
163) See §2.02[C][2][a] .
164) See §2.02[A]-§2.02[B]; Riley v. Kingsley Underwriting Agencies, Ltd, 969 F.2d 953, 956-59 (10th
Cir. 1992) (discussing contract containing both forum selection/choice-of-law clauses and
arbitration agreement); Cohen v. Stratis Bus. Ctrs, Inc., 2005 WL 3008807, at *3 (D.N.J.) (FAA
irrelevant to forum selection clause); Tenn. Imps., Inc. v. Filippi, 745 F.Supp. 1314, 1325 (M.D.
Tenn. 1990); von Mehren, An International Arbitrator’s Point of View, 10 Am. Rev. Int’l Arb. 203,
206 (1999). See also Park, Bridging the Gap in Forum Selection: Harmonizing Arbitration and
Court Selection, 8 Transnat’l L. & Contemp. Probs. 19, 25 (1998).
165) See, e.g., Allianz SpA v. W. Tankers Inc., Opinion of Advocate General Kokott, Case No. C-
185/07, [2009] E.C.R. I-686, ¶47 (E.C.J.) (“[T]he parties to the Brussels Convention thus wished
to exclude arbitration in its entirety, over and above the actual arbitration proceedings,
including proceedings brought before the national courts which are related to
arbitration”). See also Beraudo, The Arbitration Exception of the Brussels and Lugano
Conventions: Jurisdiction, Recognition and Enforcement of Judgment, 18 J. Int’l Arb. 13, 13-14
(2001); G. Born & P. Rutledge, International Civil Litigation in United States Courts 517-618,
1362-437 (7th ed. 2023); Hascher, Recognition and Enforcement of Judgments on the Existence
and Validity of An Arbitration Clause Under the Brussels Convention , 13 Arb. Int’l 33 (1997);
Park & Yanos, Treaty Obligations and National Law: Emerging Conflicts in International
Arbitration, 58 Hastings L.J. 251, 277-78 n.137 (2006).
166) See Hague Convention of 30 June 2005 on Choice of Court Agreements, Art. 2(4) (“This
Convention shall not apply to arbitration and related proceedings”). See also Kessedjian,
La Convention de La Haye du 30 Juin 2005 sur l’Élection de For, 133 J.D.I. (Clunet) 813 (2006);
Note, Recent International Agreement, 119 Harv. L. Rev. 931 (2006) (Hague Convention sets
out uniform rules for enforcement of choice-of-court clauses and requires that courts in
Contracting States assume jurisdiction pursuant to certain forum selection agreements);
§1.02[B][3]; §5.02[A][11].
167) EU Regulation 44/2001, Art. 1(2)(d). The Recast Regulation (that has applied since 10
January 2015) is to the same effect. See EU Regulation 1215/2012 of 12 December 2012 on
Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial
Matters (recast), Art. 1(2)(d).
In jurisdictions where forum selection clauses are not subject to a separate statutory or
treaty regime, specialized common law rules usually apply (which are distinct from
national arbitration legislation). G. Born & P. Rutledge, International Civil Litigation in
United States Courts 517-618 (7th ed. 2023); L. Collins et al. (eds.), Dicey, Morris & Collins on
The Conflict of Laws ¶¶12-099 to 166 (16th ed. 2022).
168) See C. Freedman & J. Farrell, Kendall on Expert Determination ¶¶1.1.1-2 (5th ed. 2015);
Freedman, Expert Determination, in F. De Ly & P. Gélinas (eds.), Dispute Prevention and
Settlement Through Expert Determination and Dispute Boards 27-38 (2017); Horn, The
Development of Arbitration in International Financial Transactions , 16 Arb. Int’l 279, 280-81
(2000); ICC, Arbitration and Expertise (1994); Jones, Expert Determination and Arbitration, 67
Arb. 17 (2001); Kotb, Alternative Dispute Resolution: Arbitration Remains A Better Final and
Binding Alternative Than Expert Determination, 8 Queen Mary L.J. 125 (2017); Pryles,
Arbitrating Disputes in the Resource Industries , 21 Arb. Int’l 405, 421-24 (2005); Stipanowich,
Contract and Conflict Management, 2001 Wis. L. Rev. 831, 845; Valasek & Wilson,
Distinguishing Expert Determination from Arbitration: The Canadian Approach in A
Comparative Perspective , 29 Arb. Int’l 63, 64-65 (2013).

169) C. Freedman & J. Farrell, Kendall on Expert Determination ¶¶1.1.2-3 (5th ed. 2015).

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All rights reserved, including rights for text and data mining, AI training, and similar technologies.
 170) See id. at ¶¶1.1.2-11; ICC, Arbitration and Expertise (1994); Rau, The Culture of American
Arbitration and the Lessons of ADR, 40 Tex. Int’l L.J. 449, 486 (2005) (“Many legal systems
draw a distinction, at least on paper, between agreements calling for ‘arbitration,’ and
those calling for something else – something that may be termed ‘appraisal,’ or
‘expertise’”); Redfern, Experts and Arbitrators: An International Perspective, 4 Int’l Arb. L.
Rev. 105, 106 (2001) (“two entirely different roles of the expert and the arbitrator”); Schoell,
Reflexions sur l’Expertise-Arbitrage en Droit Suisse, 24 ASA Bull. 621 (2006).
171) French Civil Code, Art. 1592 (if price is not fixed by parties, it can “nevertheless be left to
the determination of a third party”). See Judgment of 16 February 2010, Neervoort v. Holesco
, 2010 Rev. Arb. 503, 505 (French Cour de Cassation Com.) (agreement under which “the third
party appointed by the parties was not mandated to exercise a jurisdictional power, but to
issue a finding of fact by which the parties had agreed to be bound,” does not constitute an
arbitration agreement); Judgment of 9 October 1984, SECAR v. Shopping Décor , 1986 Rev.
Arb. 263 (French Cour de Cassation Civ. 3) (rental price to be adjusted in accordance with
index; if index ceased to be published, parties were free to opt-out from default price-
fixing mechanism, by selecting an “arbitrator” authorized to determine revised price);
Judgment of 18 November 2019, Moeuf BTP Transports Sarl v. BCA Expertise sas (Limoges Cour
d’Appel) (“[I]f the parties fail to find an amicable solution, they have agreed to have
recourse to an expertise-arbitrage … specifying in particular, in the [expertise-arbitrage]
agreement signed to this effect … ‘in order to resolve the dispute between them, the
parties intend to settle their dispute by [expertise-arbitrage] … that they appoint by
mutual agreement an automobile expert arbitrator, Mr. Arnaud Jouvet’”); Judgment of 15
November 2017, Case No. 17/02388 (Angers Cour d’Appel) (contract provided that “in the
event of disagreement between the insurer’s doctor and the insured’s doctor, both parties
may choose a third doctor to decide the matter and in this case, the parties agree to
accept the conclusions of this [expertise-arbitrage]”). See also Judgment of 3 January 1985,
1986 Rev. Arb. 267, 270 (French Cour de Cassation Com.), Note, Mayer (“[The parties’
agreement] excludes any possibility of discovering some implicit intention in the contract.
… From that moment the role of the neutral is not to interpret, but to freely create, and this
role cannot be taken on by a judge – nor, as a consequence, by an arbitrator.”); J.-L.
Delvolvé, G.-H. Pointon & J. Rouche, French Arbitration Law and Practice: A Dynamic Civil Law
Approach to International Arbitration ¶¶40-41 (2d ed. 2009) (“This does not mean that an
expert cannot be entrusted by the parties with power to make a binding decision … a
specific agreement must be made by the parties which must be free from any element of
ambiguity. … Although [Article 1592] uses the phrase ‘arbitrage d’un tiers’ (i.e., ‘arbitration
by a third party’), this is not at all ‘arbitration’ as generally understood under French law”);
Sanders, L’Arbitrage dans les Transactions Commerciales à Long Terme, 1975 Rev. Arb. 83, 85
(“[C]an we expand the notion of arbitration in such a way as to include this type of decision
[under Article 1592]? It may be unfortunate, but that would seem to be an exaggeration”).
172) Otto, in M. Herberger et al. (eds.), Juris PraxisKommentar BGB §675, ¶87 (10th ed. 2023);
Kurth, Zur Kompetenz von Schiedsrichtern und Schiedsgutachtern, 1990 NJW 2038; J.-P.
Lachmann, Handbuch für die Schiedsgerichtspraxis ¶¶74-85 (3d ed. 2008); Lauber, Privat-
und Schiedsgutachten zu Unternehmensbewertungen, in H. Fleischer et al. (eds.),
Rechtshandbuch Unternehmensbewertung ¶24 (2d ed. 2019).
173) See Netherlands Civil Code, Art. 7:900(2) (“The assessment and establishment of their new
legal status can be made by virtue of a joint decision of the involved parties or by virtue of
a decision of one of them or of a third party”), Art. 7:900(4) (arbitration is not governed by
Book 7 of Netherlands Civil Code; rather it is governed by Book 4 of Code of Civil
Procedure). See also Judgment of 6 July 2021 , 2021 Tijdschrift voor Arbitrage 4, 181 (Dutch
Gerechtshof’s Hertogenbosch); Judgment of 2 December 2020, 2021 Tijdschrift voor Arbitrage
2 (Rotterdam Rechtbank); Judgment of 20 October 2020 , 2021 Tijdschrift voor Arbitrage 1, 49
(Dutch Hof Arnhem-Leeuwarden); A. Hartkamp & C. Sieburgh, Asser 6-III* Algemeen
Overeenkomstenrecht ¶¶431-32 (2019) (“The main difference is that an arbitral award,
different from binding advice, provides an executory title”); A. van den Berg, R. Delden & H.
Snijders, Netherlands Arbitration Law §3.1 (1993).

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All rights reserved, including rights for text and data mining, AI training, and similar technologies.
 174) See, e.g., Hartford Lloyd’s Ins. Co. v. Teachworth, 898 F.2d 1058, 1062-63 (5th Cir. 1990)
(appraisal is not arbitration); Rastelli Bros. Inc. v. Netherlands Ins. Co., 68 F.Supp.2d 440,
446 (D.N.J. 1999) (“[T]here is generally a great distinction between arbitration and
appraisal” and appraisal is not subject to FAA); Johnson v. Mut. Serv. Cas. Ins. Co., 732 N.W.2d
340, 346 (Minn. App. 2007) (“[A]ppraisal provision is not an agreement to arbitration”); Mott
v. Gaer Bros., Inc., 174 A.2d 549 (Conn. Super. Ct. 1961); Barclays Bank plc v. Nylon Capital LLP
[2011] EWCA Civ 826, ¶23 (English Ct. App.) (“[E]xpert determination is a very different
alternative form of dispute resolution to which neither the Arbitration Act 1996 nor any
other statutory codes apply”); Sport Maska Inc. v. Zittrer, [1988] 1 SCR 564, ¶8 (Canadian
S.Ct.); Peregrine Estate Ltd v. Hay, [2018] 2 NZLR 345 (N.Z. Ct. App.) (“Unlike an arbitration,
there is no right of recourse to the court for error of law in the event that either party is
dissatisfied with the price fixed by the expert. However, because the expert undertakes his
or her task as an expert, not as an arbitrator, he or she is not immune from suit for
negligence”).
175) See §1.04[C][6][a] & §1.04[C][6][c]; 2015 ICC Administration of Expert Proceedings Rules. See
generally Chan, Chan & Hills, Construction Industry Adjudication: A Comparative Study of
International Practice , 22(5) J. Int’l Arb. 363, 363-65 (2005); Sessler & Leimert, The Role of
Expert Determination in Mergers and Acquisitions Under German Law , 20 Arb. Int’l 151, 152
(2004).
176) See, e.g., Judgment of 17 November 2008, DFT 4A_438/2008 (Swiss Fed. Trib.) (“[E]xpert
determination is an agreement of substantive law by means of which the parties rely on a
third party’s opinion on an issue of fact or point of law, to which they declared to be
bound”); A. van den Berg, The New York Arbitration Convention of 1958 45 (1981) (“[I]t is
characteristic of these procedures that the proceedings are not adversary and that the
third person makes the decision on the basis of his expert knowledge and experience”).
177) Heart Research Inst. Ltd v. Psiron Ltd, [2002] NSWSC 646, ¶16 (N.S.W. Sup. Ct.). The role of
the expert in an “expert determination” differs from the roles of experts in other contexts,
such as court or tribunal experts, party-nominated experts, or experts appointed to
provide a non-binding advisory opinion. See §15.08[Z][7]-§15.08[Z][8]; Valasek & Wilson,
Distinguishing Expert Determination from Arbitration: The Canadian Approach in A
Comparative Perspective , 29 Arb. Int’l 63, 65 (2013) (“[T]he line separating arbitration from
expert adjudication is faint”).
178) See, e.g., Fit Tech, Inc. v. Bally Total Fitness Holding Corp., 374 F.3d 1, 6 (1st Cir. 2004)
(accountant’s determination of corporation’s earnings “is arbitration in everything but
name”); OnPointe Cmty. Care LV LLC v. Charter Health Holdings, Inc., 2023 WL 4549319, at *6
n.5 (D. Nev.) (“While [the clause] does not explicitly use the term arbitration, the use of
language requiring the parties submit their dispute ... to the binding determination of a
third-party accounting firm evinces an intent to arbitrate”); Harker’s Distrib., Inc. v. Reinhart
Foodservice, LLC, 597 F.Supp.2d 926, 937 (N.D. Iowa 2009) (rejecting “contention that the
‘accountant remedy’ is not ‘arbitration,’ because it never uses the word ‘arbitrate,’ and
does not incorporate any arbitration body’s or arbitration act’s rules of arbitration”);
Agiliance, Inc. v. Resolver SOAR, LLC, 2019 WL 343668 (Del. Ch.) (despite appointment of
accountants, language of dispute resolution clause required parties to arbitrate); Penton
Bus. Media Holdings, LLC v. Informa plc, 2018 WL 3343495, at *29 (Del. Ch.) (language of
dispute resolution clause provided for expert, rather than arbitrator); British Telecommc’ns
plc v. SAE Group Inc. [2009] EWHC 252, ¶45 (TCC) (English High Ct.) (“[R]eference to the
person acting ‘as an expert’ … is a clear reference to the dispute being determined by
person acting in that capacity which is inconsistent with arbitration”). See also Baker,
Unintended Consequences of Badly Drafted Arbitration Agreements, 23 Alt. Disp. Resol. 16
(2019).
179) Wilky Prop. Holdings plc v. London & Surrey Invs. Ltd [2011] EWHC 2226 (Ch) (English High
Ct.).

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 180) See, e.g., Portland Gen. Elec. Co. v. U.S. Bank Trust Nat’l Ass’n, 218 F.3d 1085, 1090 (9th Cir.
2000) (appraisal provisions are “typically limited to ministerial determinations such as the
ascertainment of quality or quantity of items, the ascertainment of loss or damage to
property or the ascertainment of the value of property”); Smithson v. U.S. Fid. & Guar. Co.,
411 S.E.2d 850 (W. Va. 1991) (“[T]he narrow purpose of an appraisal and the lack of an
evidentiary hearing make it a much different procedure from arbitration”; rejecting
possibility for claim outside appraisal process); Penton Bus. Media Holdings, LLC v. Informa
plc, 2018 WL 3343495 (Del. Ch.) (distinguishing expert determination from arbitration); State
Farm Lloyds v. Johnson, 290 S.W.3d 886, 890 (Tex. 2009) (“The word ‘appraisal’ itself
generally means ‘The determination of what constitutes a fair price; valuation; estimation
of worth.’ … [T]he scope of appraisal is damages, not liability”); Preferred Ins. Co. v. Richard
Parks Trucking Co., 158 So.2d 817, 820 (Fla. Dist. Ct. App. 1963) (“An agreement for arbitration
ordinarily encompasses the disposition of the entire controversy between the parties upon
which award a judgment may be entered, whereas an agreement for appraisal extends
merely to the resolution of the specific issues of actual cash value and the amount of loss,
all other issues being reserved for determination in a plenary action before the court”);
Judgment of 19 February 2015, Case No. 14-13.716 (French Cour de Cassation Civ. 2) (“[A]n
[expertise-arbitrage] agreement drawn up by the insurer, specifying only that the
conclusions of this review will be binding [upon the parties] does not contain any
unequivocal waiver by the insured of the right to have recourse to judicial review” and
does not constitute arbitration agreement); Judgment of 15 December 2010, Société
Générale Motors France v. Champs de Mars Automobile AS , 2011 Rev. Arb. 435, 436 (French
Cour de Cassation Civ. 1) (decision was not arbitral award because “experts did not draw
any legal conclusions consequent to their decision”); Judgment of 16 February 2010,
Neervoort v. Holesco, 2010 Rev. Arb. 503, 505 (French Cour de Cassation Com.) (“[A]greement
pursuant to which ‘the third party appointed by the parties was mandated not to exercise
an adjudicatory power,’ but to arrive at a finding of facts by which the parties agreed to be
bound,” does not constitute arbitration agreement); Judgment of 9 November 1999, Syndicat
des Coproprietaires du 35, Rue Jouvent v. Halpern , 2001 Rev. Arb. 159 (Paris Cour d’Appel)
(architect/expert’s determinations were not to resolve dispute but only to “perfect” a
compromise). See also B. Moreau et al., Arbitrage en Droit Interne ¶24 (2017) (“[T]he only
similarity between [expertise-arbitrage and arbitration] is that the parties entrust a third
party, which is not an ordinary court of law, with the task of determining a point of fact or
law. The essential difference between them is that the expert will only have to formulate
an opinion which will not be binding on the parties … whereas the arbitrator’s task is to
render an award which will be directly binding on the parties”); N.Y. City Bar Committee on
International Commercial Arbitration, Purchase Price Adjustment Clauses and Expert
Determinations: Legal Issues, Practical Problems and Suggested Improvements (2013) (expert
determination is not arbitration); Rau, The Culture of American Arbitration and the Lessons
of ADR, 40 Tex. Int’l L.J. 449, 486 (2005) (“[A]aradigm of the ‘appraisal’ is a provision in a
casualty insurance policy by which, if ‘the insured and the Company shall fail to agree as to
the actual cash value of the amount of the loss,’ then the loss shall be finally determined
by ‘competent and disinterested’ decision makers”); C. Seraglini & J. Ortscheidt, Droit de
l’Arbitrage Interne et International ¶23 (2013) (“[A]n expert gives an opinion on the facts, by
formulating an opinion that is not binding on the parties who requested it, while the
arbitrator decides on legal differences by way of an arbitral award that is binding on the
parties”); Valasek & Wilson, Distinguishing Expert Determination from Arbitration: The
Canadian Approach in A Comparative Perspective , 29 Arb. Int’l 63, 79 (2013) (“On the one
hand, arbitration agreements permit arbitrators to resolve pending disputes between the
parties and to determine ultimate liability, generally through adversary hearings at which
evidence is admitted and the arbitrator plays a quasi-judicial role. … Appraisal
agreements, on the other hand, … are typically limited to ministerial determinations such
as the ascertainment of quality or quantity of items, the ascertainment of loss or damage
to property, or the ascertainment of the value of property”).

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 181) Levine v. Wiss & Co., 478 A.2d 397, 402 (N.J. 1984). See also C. Freedman & J. Farrell, Kendall
on Expert Determination ¶¶16.8.1-10 (5th ed. 2015); Münch, in W. Krüger & T. Rauscher (eds.),
Münchener Kommentar zur Zivilprozessordnung Vorbemerkung zu §1025, ¶100 (6th ed. 2022)
(“It speaks in favor of an expert determination if the task is limited to the concrete
determination of a single question of fact”); Park, When and Why Arbitration Matters, in G.
Beresford Hartwell (ed.), The Commercial Way to Justice 73, 93 (1997) (question is whether
issues “approximate a request for judicial relief”: “was the roof completed? … [is for expert,
while] … does the customer owe $10,000 to the Contractor? … is for arbitrator”); W. Sturges,
A Treatise on Commercial Arbitrations and Awards 18-23 (1930) (identifying factors for
distinguishing arbitration from expert determination: (a) “an arbitration presumes a
dispute or controversy”; (b) “an appraisal or valuation determines merely an incidental or
subsidiary matter and does not embrace the legal responsibility or the whole controversy”;
and (c) “the functions of appraisers or valuers are ‘ministerial’ whereas those of arbitrators
are ‘judicial’”).
182) See, e.g., Quade v. Secura Ins., 814 N.W.2d 703, 708 (Minn. 2012) (Page, J., dissenting)
(“Minnesota law … does not authorize appraisers to make … legal determination[s]”);
Scottish Union & Nat’l Ins. Co. v. Clancy, 8 S.W. 630 (Tex. 1888); Judgment of 21 December
2000, Mutuelle Fraternelle d’Assurances v. Chetouane , 2001 Rev. Arb. 178 (Paris Cour
d’Appel) (no arbitration where doctor merely made factual determinations without
drawing “legal conclusion”).
183) Judgment of 18 December 2013, 2014 ZEV 311, 312 (German Bundesgerichtshof) (“The
arbitration agreement is aimed at the resolution of the dispute by arbitrators outside the
state jurisdiction, while the expert determination is aimed only at the determination of
individual elements of the facts …”); Judgment of 13 January 2005 , 2005 SchiedsVZ 95
(German Bundesgerichtshof) (“[A]rbitration is adjudication in a broader sense … [i]t is
legally recognized as a form of non-governmental dispute resolution”); Judgment of 23 May
1960, 1960 NJW 1462, 1463 (German Bundesgerichtshof) (arbitration clause needs to
encompass totality of, or at least a substantial part of, claim); Judgment of 25 June 1952,
1952 NJW 1296 (German Bundesgerichtshof); Judgment of 23 December 2015, 34 SchH 10/15
(Oberlandesgericht München); Judgment of 20 January 1971, 1971 NJW 943
(Oberlandesgericht Zweibrücken). See also Münch, in W. Krüger & T. Rauscher (eds.),
Münchener Kommentar zur Zivilprozessordnung Vorbemerkung zu §1025, ¶¶94-95 (6th ed.
2022); Risse, Schiedsgutachterklausel, in M. Hoffmann-Becking et al. (eds.), Beck’sches
Formularbuch Bürgerliches, Handels- und Wirtschaftsrecht ¶1 (14th ed. 2022).
184) Judgment of 14 December 1994, 7 Ob 604/94 (Austrian Oberster Gerichtshof). See also
Judgment of 26 May 2020, 9 Ob 18/20t (Austrian Oberster Gerichtshof) (“The question of
whether a genuine arbitration contract or an arbitration expert contract exists depends on
whether the appointed experts are to decide a legal dispute or whether they are merely to
determine a fact or the amount of a payment. The expert determinator (Schiedsgutachter)
merely has to give an expert opinion, whereas the arbitrator makes a decision, i.e. can
impose a performance on the parties. Expert determinator do not decide what is legal
between the parties, but merely create the basis for such a decision or a settlement of the
dispute by the parties themselves”); Fellner & Netal, Alternative Dispute Resolution: Is
Austria Fit for Adjudication?, 2010 Austrian Y.B. Int’l Arb. 237, 254-55 (“The main difference
between an expert determinator and an arbitrator is that the former does not decide the
dispute but often creates the basis for the settlement of the dispute”).

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 185) See, e.g., City of Omaha v. Omaha Water Co., 218 U.S. 180, 193-94 (U.S. S.Ct. 1910) (appraisers
“were to examine and estimate the value and acquaint themselves with the condition and
extent of the property in question in their own way and not according to the procedure
required in a judicial proceeding”); Portland Gen. Elec. Co. v. U.S. Bank Trust Nat’l Ass’n, 218
F.3d 1085, 1090 (9th Cir. 2000) (“[A]rbitration agreements permit arbitrators to resolve
pending disputes generally through adversary hearings at which evidence is admitted and
the arbitrator plays a quasi-judicial role”); Corey v. N.Y. Stock Exchange, 691 F.2d 1205, 1209
(6th Cir. 1982); Montview Blvd Presbyterian Church v. Church Mutual Ins. Co., 2016 WL 233380,
at *4 (D. Colo.) (“[T]he appraisal process undertaken in connection with this litigation was
not an arbitration and is not subject to the provisions of the CUAA”); Litman v. Holtzman,
149 A.2d 385, 389 (Md. 1959) (parties did not “intend their respective accountants or the
umpire to hold adversary hearings”: “Customary auditing practice does not include the
ascertainment of facts or results only in the presence of those of opposing views. Auditing
is essentially a unilateral investigatory process”); Jacob v. Seaboard, Inc., 610 A.2d 189, 192
(Conn. App. 1992) (arbitration involves “quasi-judicial proceeding” that is “adversarial in
nature, and implies that the parties will present witnesses and evidence, if they want, after
notice of a hearing date, and argue their positions to an impartial decision maker”);
Arenson v. Casson Beckman Rutley & Co. [1975] 3 All ER 901 (House of Lords); Sutcliffe v.
Thackrah [1974] 1 All ER 859, 882 (House of Lords) (“Judges and arbitrators have disputes
submitted to them for decision. The evidence and the contentions of the parties are put
before them for their examination and consideration. … None of this is true about the
valuer or the architect who were merely carrying out their ordinary business activities”);
Barclays Bank plc v. Nylon Capital LLP [2011] EWCA Civ 826, ¶37 (English Ct. App.) (“Unless
the parties specify the procedure, the expert determines how he will proceed; it is rare for
what might be perceived as procedural unfairness in an arbitration to give rise to a ground
for challenge to the procedure adopted by an expert”); Schulte v. Nile Holdings Ltd [2004] 2
Lloyd’s Rep. 352, ¶95 (QB) (English High Ct.) (“A person sitting in a judicial capacity decides
matters on the basis of submissions and evidence put before him, whereas the expert,
subject to the express provisions of his remit, is entitled to carry out his own investigations,
form his own opinion and come to his own conclusion regardless of any submissions or
evidence adduced by the parties themselves”); Sport Maska Inc. v. Zittrer, [1988] 1 SCR 564
(Canadian S.Ct.); 4575 Poirier Inv. Ltd v. Gubbay, [1998] QJ 3171 (Québec Super. Ct.) (similarity
with judicial process is most important criterion in deciding whether dispute resolution
procedure is arbitration).
186) Mott v. Gaer Bros., Inc., 174 A.2d 549, 552 (Conn. Super. Ct. 1961).
187) Walkinshaw v. Diniz [2000] 2 All ER 237, 252 (Comm) (English High Ct.). See also Metalform
Asia Pte Ltd v. Holland Leedon Pte Ltd, [2007] 2 SLR 268 (Singapore Ct. App.) (“[S]ingle most
significant distinction between expert determination and litigation/arbitration” is that
arbitrator was required to hear parties and expert was not); Age Old Builders Pty Ltd v.
Swintons Pty Ltd, [2003] VSC 307, ¶¶68-69 (Victoria Sup. Ct.) (most significant feature of “an
inquiry in the nature of a judicial inquiry” is the parties’ “fundamental right to a hearing”).
188) See §15.07[D][2]. Some authorities have suggested that an arbitrator who relies on his or her
own expert judgment to find or evaluate the facts may exceed his or her authority,
exposing any award to annulment or non-recognition. See C. Freedman & J. Farrell, Kendall
on Expert Determination ¶16.6-6 (5th ed. 2015). Compare St. George’s Inv. Co. v. Gemini
Consulting Ltd [2004] EWHC 2353 (Ch) (English High Ct.) (“[A]n arbitrator is entitled to use his
expert knowledge to arrive at his award, provided it is of the kind and in the range of
knowledge that one would reasonably expect the arbitrator to have and providing that he
uses it to evaluate the evidence called and not to introduce new and different evidence”).
189) Ward v. Merrimack Mut. Fire Ins. Co., 753 A.2d 1214, 1222 (N.J. Super. Ct. App. Div. 2000)
(quoting Binkewitz v. Allstate Ins. Co., 537 A.2d 723 (N.J. Super. Ct. App. Div. 1988)). See also
§2.02[C][1][b][v]; Valasek & Wilson, Distinguishing Expert Determination from Arbitration: The
Canadian Approach in A Comparative Perspective , 29 Arb. Int’l 63, 87 (2013) (“the two key
factors that distinguish arbitration from expert adjudication, namely the duty to
adjudicate between the competing arguments of the parties (without the neutral being
able to rely on his or her own subjective opinion) and the related duty to comply with rules
of procedural fairness”).

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 190) See Checkpoint Ltd v. Strathclyde Pension Fund [2003] EWCA Civ 84, ¶45 (English Ct. App.)
(“‘[I]ntracranial’ information is different from information gained externally because the
former is already within the surveyor’s experience which he may then deploy”); In re An
Arbitration Between Dawdy & Hartcup [1884-85] 15 QB 426, 430 (English Ct. App.) (appraisers
make “use of [their] eyes, … knowledge and … skill”); Hanzek v. TRM (Canada) Corp., [2007]
BCSC 418 (B.C. Sup. Ct.); Evergreat Constr. Co. v. Presscrete Eng’g Ltd, [2005] SGHC 224, ¶37
(Singapore High Ct.) (“If he has the sole discretion to arrive at his determination without
being hamstrung by procedural and evidential intricacies or niceties, it is most unlikely
that the court will view the proceedings to be arbitration proceedings. An expert is
permitted to inject into the process his personal expertise and to make his own inquiries
without any obligation to see the parties’ views or consult them. An expert is also not
obliged to make a decision on the basis of the evidence presented to him. He can act on
his subjunctive opinion, that is the acid test”); Mayers v. Dlugash, [1994] 1 HKLR 442 (H.K. Ct.
First Inst.) (accountant appointed to resolve dispute between two business partners was
expert, with investigative authority, and not arbitrator with judicial function); Zeke Servs.
Pty Ltd v. Traffic Techs. Ltd, [2005] QSC 135, ¶27 (Queensland Sup. Ct.) (“[E]xpert
determinations are, at least in theory, expeditious because they are informal and because
the expert applies his own store of knowledge, his expertise, to his observations of facts,
which are of a kind with which he is familiar”) (emphasis added); Modi v. Modi, 3 SCC 573,
¶3.2 (Indian S.Ct. 1998) (“The intention of the parties was not to have any judicial
determination on the basis of evidence led before the Chairman [of the Industrial Finance
Corporation of India (IFCI), who resolved the parties’ dispute regarding valuation of shares].
Nor was the Chairman, IFCI required to base his decision only on the material placed
before him by the parties and their submissions. He was free to make his own inquiries. He
had to apply his own mind and use his own expertise for the purpose. He was free to take
the help of other experts. He was required to decide the question of valuation and the
division of assets as an expert and not as an arbitrator. He had been authorised to
nominate another in his place”); Arbitration Application No. 1/2013, [2014] CSOH 83 (Scottish
Session Ct.) (“[T]he arbitrator would be expected to deploy his knowledge in arriving at his
decision”). See also Bannister & Phillips, Experience and Knowledge Are the Key, Estates Gaz.
150 (26 June 2006); Klaas, The Value of Peach Orchards: The Perils of Arbitrator Subject-
Matter Expertise, 41 ZDAR 47 (2018).
191) Elberon Bathing Co. v. Ambassador Ins. Co., 389 A.2d 439, 447 (N.J. 1978). Other authorities
have suggested that distinguishing between arbitration and expert determination depends
on whether there is a defined dispute that the parties have agreed to resolve by reference
to a third party exercising a judicial or semi-judicial function; if so, then it is an arbitration,
but if not, it is an expert determination. See C. Freedman & J. Farrell, Kendall on Expert
Determination ¶¶16.4-1 to 6-8 (5th ed. 2015).
192) C. Freedman & J. Farrell, Kendall on Expert Determination ¶6.7.1 (5th ed. 2015) (“Clauses
referring all disputes under a contract to the final and binding decision of an expert are
found in some contracts. These clauses do not limit the exercise of the expert’s judgment
to valuation or technical questions but call on the expert to act more like a judge or
arbitrator. Standard conditions of contract for process plant refer a number of potential
areas of dispute to an expert. … Some development agreements and building leases
provide [for similar expert decisions]. … A clause referring all disputes to an expert has
also been used in the telecommunications sector”). See also Quade v. Secura Ins., 814
N.W.2d 703, 708 (Minn. 2012) (“[A]s an incidental step in the appraisal process in this case,
the appraisers must necessarily determine the cause of the loss, as well as the amount
necessary to repair the loss”).
193) See J.B. Racine, Droit de l’Arbitrage ¶12 (2016) (“Another criterion [to characterize
arbitration] is based on the distinction between questions of fact and questions of law. …
Here again, this criterion, although useful, does not always work since, obviously, the
divide between fact and law is blurred (the arbitrator being in any case called to decide
questions of fact and questions of law)”).
194) C. Freedman & J. Farrell, Kendall on Expert Determination ¶¶16.6-8 (5th ed. 2015)
(comparing documents-only arbitration to expert determination).
195) See §1.02[B][6]; §2.02[C][2][d]; C. Freedman & J. Farrell, Kendall on Expert Determination
¶¶16.7-17 (5th ed. 2015).
196) See the authorities cited in §2.02[C][4]. See also the discussion of an arbitrator’s
adjudicative character in §1.05; §2.02[C][4]; §13.04[A].

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 197) Cheng-Canindin v. Renaissance Hotel Assocs., 50 Cal.App.4th 676, 684 (Cal. Ct. App. 1996). See
also Evanston Ins. Co. v. Cogswell Props. LLC, 683 F.3d 684, 693 (6th Cir. 2012) (“‘Central to
any conception of classic arbitration is that the disputants empowered a third party to
render a decision settling their dispute’”) (quoting Salt Lake Tribune Publ’g Co., LCC v. Mgt
Planning, Inc., 390 F.3d 684, 689 (10th Cir. 2004)); Corey v. N.Y. Stock Exchange, 691 F.2d 1205,
1209 (6th Cir. 1982) (“We believe that determinations made by the panel of arbitrators in
the case on appeal are functionally comparable to those of a judge or an agency hearing
examiner even though this was not a statutory arbitration or one where the arbitrators
were court appointed”; “[a]rbitrators are judges chosen by the parties to decide matters
submitted to them”); Paynter Consulting, LLC v. Biotech Restorations, LLC, 2016 WL 6990794
(D.S.C.) (“[A]rbitration [is] a dispute resolution mechanism with a final decision-maker”);
Harker’s Distrib., Inc. v. Reinhart Foodservice, LLC, 597 F.Supp.2d 926, 937 (N.D. Iowa 2009)
(“[T]he common incidents of arbitration of a contractual dispute [a]re whether the remedy
was ‘final’; whether it involved an ‘independent adjudicator’; whether there were
‘substantive standards’; and whether there was ‘an opportunity for each side to present its
case’”) (quoting Fit Tech, Inc. v. Bally Total Fitness Holding Corp., 374 F.3d 1, 7 (1st Cir. 2004));
Hodges v. MedAssets Net Rev. Sys., LLC, 2008 WL 476140, at *3 (N.D. Ga.) (“The [AAA] defines
arbitration as the submission of a dispute to one or more impartial persons for a final and
binding decision”); Hartford Fire Ins. Co. v. Jones, 108 So.2d 571, 572 (Miss. 1959)
(“[A]rbitration presupposes the existence of a dispute or controversy to be tried and
determined in a quasi judicial manner, whereas appraisement is an agreed method of
ascertaining value or amount of damage, stipulated in advance, generally as a mere
auxiliary or incident feature of a contract, with the object of preventing future disputes,
rather than of settling present ones”); Miller v. Miller, 691 N.W.2d 788, 790 n.4 (Mich. Ct. App.
2004) (where “arbitrator” conducted no hearing, but met ex parte with each party, “no
arbitration took place in the traditional sense of the word”). See also Rau, The Culture of
American Arbitration and the Lessons of ADR, 40 Tex. Int’l L.J. 449, 495 (2005) (“It is the
peculiar nature, the identifying characteristic, of the arbitration process that it proceed in
an adversarial manner; there will as a consequence be a hearing, or at the very least the
introduction of evidence and argument. Appraisers, by contrast, are hired not to proceed
‘judicially,’ but to arrive at a decision by deploying their professional experience and ‘the
use of [their] eyes, … knowledge and … skill’ – perhaps even by making their own
investigation”) (quoting In re An Arbitration Between Dawdy & Hartcup [1884-85] 15 QB 426,
430 (English Ct. App.)).
198) See §1.02[B][6]; Salt Lake Tribune Publ’g Co., LCC v. Mgt Planning, Inc., 390 F.3d 684, 690
(10th Cir. 2004) (“Parties need not establish quasi-judicial proceedings resolving their
disputes to gain the protections of the FAA, but may choose from a range of procedures and
tailor arbitration to their peculiar circumstances”); AMF Inc. v. Brunswick Corp., 621 F.Supp.
456, 460 (S.D.N.Y. 1985) (FAA applied despite fact that procedures did not involve an
adversary hearing, but were based on ex parte communications).
199) Walkinshaw v. Diniz [2000] 2 All ER 237, 255 (Comm) (English High Ct.). That analysis included
reference to (a) the wording of the clause; (b) the tribunal’s obligation to apply applicable
law; (c) the nature of the proceedings, including impartiality, equality of treatment, and an
absence of ex parte contacts; (d) the enforceability of the putative arbitration agreement;
and (e) a binding decision on a dispute that is formulated at the time the tribunal is
constituted. Id. The Court relied on a discussion of the attributes of arbitration in M. Mustill
& S. Boyd, Commercial Arbitration 41 (2d ed. 1989).
200) David Wilson Homes Ltd v. Survey Servs. Ltd [2001] BLR 267, ¶15 (English Ct. App.). In
contrast, another English case involved a provision titled “Arbitration,” which provided
that any dispute was to be referred to an independent consultant, who was “to act as an
expert and not an arbiter and his decision shall be final and binding on the parties.” The
court held that this was not an arbitration agreement, but an agreement for expert
determination. Cott UK Ltd v. Barber [1997] 3 All ER 540, 545 (QB) (English High Ct.). As a
consequence, English arbitration legislation did not apply and no immediate stay of
judicial proceedings was required.
201) See Pickens v. Templeton, [1994] 2 NZLR 718 (Christchurch High Ct.). Compare Motunui Ltd v.
Methanex Spellman, [2004] 1 NZLR 95 (Auckland High Ct.). See also Peregrine Estate Ltd v.
Hay, [2018] 2 NZLR 345, ¶25 (N.Z. Ct. App.) (“[T]he expert undertakes his or her task as an
expert, not as an arbitrator, he or she is not immune from suit for negligence”).
202) Pickens, [1994] 2 NZLR at 728.

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All rights reserved, including rights for text and data mining, AI training, and similar technologies.
 203) See Sport Maska Inc. v. Zittrer, [1988] 1 SCR 564 (Canadian S.Ct.) (inquiring inter alia whether
“parties have the right to be heard, to argue, to present testimonial or documentary
evidence, that lawyers are present at the hearing and that the third party delivers an
arbitral award with reasons”); PT Tugu Pratama Indonesia v. Magma Nusantara Ltd, [2003]
SGHC 204 (Singapore High Ct.); Mayers v. Dlugash, [1994] 1 HKLR 442, 443-44 (H.K. Ct. First
Inst.); Thomas Cooke Pty Ltd v. Commonwealth Banking Corp., [1986] 4 BPR 9185 (N.S.W. Sup.
Ct.) (most important factor in whether arbitrator immunity applies is whether individual
performed judicial function and engaged in exercise with significant judicial element).
204) Sport Maska Inc. v. Zittrer, [1988] 1 SCR 564, ¶96 (Canadian S.Ct.).
205) See, e.g., Judgment of 11 January 2018, Estoup v. Courtoux , 2018 Rev. Arb. 294, 295 (French
Cour de Cassation Civ. 2) (“arbitrators exercise a judicial function”); Judgment of 15 January
2014, Azran v. Schirer , 2014 Rev. Arb. 222 (French Cour de Cassation Civ. 1) (“judicial function
of arbitrators”); Judgment of 11 March 2009, Pourvoi No. 08-12149 (French Cour de Cassation
Civ. 1) (“judicial mission of arbitrators”); Judgment of 20 February 2001, Cubic Défense Sys.
Inc. v. Chambre de Commerce Internationale, 2001 Bull. Civ. I No. 39, 24 (French Cour de
Cassation Civ. 1) (“judicial functions entrusted to the arbitrators”); Judgment of 16 December
1997, Van Luijk v. Commerciale Raoul Duval, 1999 Rev. Arb. 253, 253 (French Cour de
Cassation Civ. 1) (“The Court of Appeals correctly held that the arbitrator exercises a
judicial function”).
206) See, e.g., Judgment of 30 June 2016, Case No. 15/03050 (Versailles Cour d’Appel) (arbitrators
entrusted with “judicial power”); Judgment of 21 February 2012, Case No. 10/15837 (Paris
Cour d’Appel) (arbitrators exercise “judicial mission”); Judgment of 2 March 2006, Case No.
04/05773 (Versailles Cour d’Appel) (arbitrators exercise “judicial function”); Judgment of 6
May 2002, Case No. 2000/06316 (Lyon Cour d’Appel) (arbitrators “called upon to exercise
judicial functions”); Judgment of 28 October 1999, SA Fretal v. SA ITM Enterprises , 2000 Rev.
Arb. 299 (Paris Cour d’Appel) (“The independence and impartiality of the arbitrator are the
essence of his judicial role”); Judgment of 2 June 1989, Gemanco v. Arabe des Engrais
Phosphates et Azotes, 1991 Rev. Arb. 87 (Paris Cour d’Appel) (“The independence of the
arbitrator is the essence of his judicial function”); Judgment of 9 May 2001, Soufflet Négoce
v. Tradco Interoceanic Commodities , 2004 Rev. Arb. 113 (Paris Tribunal de Grande Instance)
(“judicial function of the arbitrator”). See also Judgment of 4 December 2007, SA Generali
Assurances IARD v. Lydie X, RG 07/00019 (Agen Cour d’Appel) (“[E]xistence of an arbitration
agreement requires [that parties] intend to confer judicial power to a third party or parties
judicial power”); Judgment of 9 May 2001, 2004 Rev. Arb. 118, 119 (Paris Tribunal de Grande
Instance), Note, Leboulanger (“[A]n arbitral tribunal fulfills a judicial mission”).
207) Judgment of 25 June 1952, 1952 NJW 1296, 1297 (German Bundesgerichtshof). See also Andres,
in M. Andres & B. Gehle (eds.), Kommentar zur Zivilprozessordnung §1025, ¶13 (80th ed.
2022) (distinction between arbitration and expert determination based on judicial nature
of arbitrators’ decision); Klumpp, Schiedsabereden, in W. Beisel et al. (eds.), Der
Unternehmenskauf ¶5 (7th ed. 2016) (recognizing judicial nature of arbitrators’ function); J.-
P. Lachmann, Handbuch für die Schiedsgerichtspraxis ¶77 (3d ed. 2008) (distinction between
expert determination and arbitration is essential because of procedural differences: only
in arbitration must “procedural principles securing a judicial procedure according to the
rule of law,” like the right to be heard, be applied).
208) Judgment from 4 November 2021, 2022 NJW 245, 246 (German Bundesgerichtshof) (“An
arbitral tribunal … only exists if legal disputes are submitted to a decision by an
independent and impartial body under exclusion of recourse to the ordinary courts. The
rules of the association must ensure that the court acts as a neutral third party …”);
Judgment of 13 January 2005 , 2005 SchiedsVZ 95, 97 (German Bundesgerichtshof); Judgment
of 27 May 2004, 2004 NJW 2226, 2227 (German Bundesgerichtshof) (arbitration is
adjudication of disputes in broader sense and therefore implies decision by neutral third
party); Judgment of 2 February 2017, 2017 SchiedsVZ 150, 153 (Oberlandesgericht Frankfurt
am Main). See also J. Kleinschmidt, Delegation von Privatautonomie auf Dritte: Zulassigkeit,
Verfahren und Kontrolle von Inhaltsbestimmungen und Feststellungen Dritter im Schuld- und
Erbrecht 438 (2014).
209) Judgment of 17 November 2008, DFT 4A_438/2008, 9 (Swiss Fed. Trib.) (“The expert
determination is a material law contract whereby the parties entrust a third party with
giving an opinion on a factual or legal issue, stating in advance that they will be obliged to
comply with the opinion”); Judgment of 26 November 1991, DFT 117 IA 365, 367-68 (Swiss Fed.
Trib.) (characterizing as arbitral award report of experts determining transfer price of
shares); C. Müller & S. Pearson, Swiss Case Law in International Arbitration Art. 176, ¶1.5.2 (3d
ed. 2019).
210) C. Müller & S. Pearson, Swiss Case Law in International Arbitration Art. 176, ¶1.5.2.2 (3d ed.
2019).

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 211) For commentary on drafting arbitration and expert determination clauses, see G. Born,
International Arbitration and Forum Selection Agreements: Drafting and Enforcing 35-140
(6th ed. 2021); C. Freedman & J. Farrell, Kendall on Expert Determination ¶¶16.3, 16.8 (5th
ed. 2015); Freyer, Practical Considerations in Drafting Dispute Resolution Provisions in
International Commercial Contracts: A U.S. Perspective, 15(4) J. Int’l Arb. 7, 7-12 (1998).
212) Cott UK Ltd v. Barber [1997] 3 All ER 540 (QB) (English High Ct.) (refusing statutory stay of
litigation because no arbitration, but rather expert determination, was pending); Schoell,
Reflexions sur l’Expertise-Arbitrage en Droit Suisse, 24 ASA Bull. 621 (2006) (describing
Judgment of 5 July 2004 (Geneva Tribunal de Première Instance), refusing judicial
assistance to appoint expert determiner).
213) See Thomas Cooke Pty Ltd v. Commonwealth Banking Corp., [1986] 4 BPR 9185 (N.S.W. Sup.
Ct.); Peregrine Estate Ltd v. Hay, [2018] ¶25 2 NZLR 345 (N.Z. Ct. App.); Pickens v. Templeton,
[1994] 2 NZLR 718, 728 (Christchurch High Ct.).
214) See, e.g., Omni Tech Corp. v. MPC Solutions Sales, LLC, 432 F.3d 797, 799 (7th Cir. 2005) (“The
statement that PricewaterhouseCoopers will act as an expert and not as an arbitrator
means that it will resolve the dispute as accountants do – by examining the corporate
books and applying normal accounting principles plus any special definitions the parties
have adopted – rather than by entertaining arguments from lawyers and listening to
testimony. It does not imply that the whole section of the contract committing resolution
to an independent private party is hortatory. Thus the provision for the ‘final, conclusive
and binding’ resolution of this dispute by someone other than a federal judge must be
honored; the judge is no more entitled to ignore it than he could ignore the contract’s
detailed definition of ‘net working capital’”); McLaughlin v. Day & Zimmerman Int’l, Inc.,
2009 WL 10689227 (E.D. Va.) (disputes referred to Ernst & Young were not expert
determination but arbitration); State v. Martin Bros., 160 S.W.2d 58, 61 (Tex. 1942) (in
contract that provided for dispute resolution through expert determination by highway
engineer, court observed: “The contract also provides that the decision of the Highway
Engineer shall be final and conclusive. The Highway Engineer denied the claim of the
plaintiffs. They cannot escape the binding effect of the decision of the Highway Engineer,
without alleging and proving that his decision in this case was based upon partiality, fraud,
misconduct, or gross error. No such attack was made upon the decision, either by
pleadings or by proof, and, therefore, under the decisions of this Court plaintiffs are not
entitled to recover herein”); Palumbo v. Select Mgt Holdings, Inc., 2003 Ohio 6045, ¶10 (Ohio
Ct. App.) (agreement for resolution of disputes by national accounting firm is “final and
binding dispute resolution”: “even if the procedure prescribed in the contract here was not
arbitration … the court’s general jurisdiction would give the court power to compel specific
performance of a contractual agreement to participate in another form of ADR”; leaving
open question whether “the result may … be subject to court enforcement”); Wilky Prop.
Holdings plc v. London & Surrey Invs. Ltd [2011] EWHC 2226 (Ch) (English High Ct.) (references
to expert determination were not displaced by “contra-indications” of arbitration in
contract); Aiton Australia Pty Ltd v. Transfield Pty Ltd, [1999] 153 FLR 236, 244 (N.S.W. Sup. Ct.)
(“It is trite to observe that parties ought to be bound by their freely negotiated contracts”).
Compare Grenier v. Compratt Constr. Co., 454 A.2d 1289, 1292 (Conn. 1983) (“Frequently,
building contracts provide that a third party, an architect or an engineer, acting in good
faith and in the exercise of his best judgment, shall decide when one of the contracting
parties has fulfilled the requirements of the contract. In such circumstances, if the
architect or engineer withholds certification, and his decision is not arbitrary or made in
bad faith, a court is not authorized to substitute its judgment for that of the designated
expert”). See also §2.02[C][2][b].
215) Different jurisdictions apply different legal standards to the consequences of an expert
determination and there is no international convention or similar instrument that requires
either uniform or minimum recognition and enforcement of such determinations. In
general, most developed jurisdictions will treat expert determinations as binding, subject
to showings of clear error or fraud, but there is much less uniformity in such standards than
is the case with arbitral awards. See J v. K [2019] EWHC 273 (Comm) (English High Ct.) (parties
did not specify that expert’s determination was “final and binding” so dispute was subject
to further arbitration); Judgment of 17 November 2008, DFT 4A_438/2008, 12 (Swiss Fed.
Trib.) (binding character of expert’s decision is inherent aspect of expert determination).
See also A. Samuel, Jurisdictional Problems in International Commercial Arbitration 47 (1989)
(“In some cases, it would be wrong to apply arbitration legislation to a valuation, for
instance as regards provisions for judicial review on the merits”).

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 216) See City of Omaha v. Omaha Water Co., 218 U.S. 180 (U.S. S.Ct. 1910) (appraisal is not
arbitration).
217) See, e.g., Omni Tech Corp. v. MPC Solutions Sales, LLC, 432 F.3d 797 (7th Cir. 2005) (accountant
review held to be arbitration clause); Wasyl, Inc. v. First Boston Corp., 813 F.2d 1579 (9th Cir.
1987) (provision for “three independent appraisers” to establish fair market value of
partnership interest is subject to FAA); Fed. Ins. Co. v. Anderson, 2019 WL 8128570, at *4 (N.D.
Cal.) (“California law, in turn, defines appraisals as a form of arbitration”); Singleton v.
Grade A Mkt, Inc., 607 F.Supp.2d 333, 339 (D. Conn. 2009) (“[I]n a case such as the one before
this court – where a contract calls for dispute resolution through a binding appraisal
process, and such process would completely dispose of the case-appraisal is akin to
arbitration and therefore it is logical for the court to favor appraisal for the same reasons
arbitration is generally favored”); Schofield v. Int’l Dev. Group Co., 2006 WL 504058, at *1
(W.D. Tex.) (agreement to final decision by “independent auditor” was arbitration
agreement); Benson Pump Co. v. S. Cent. Pool Supply, Inc., 325 F.Supp.2d 1152, 1155 (D. Nev.
2004) (provision for “independent, nationally-recognized accounting firm” to resolve
disputes over “Accounts Receivable Adjustment” held subject to FAA); Powderly v.
Metrabyte Corp., 866 F.Supp. 39 (D. Mass. 1994) (finding arbitration agreement where
contract provided for accounting firm to calculate “Net Operating Profit”); Schaefer v.
Allstate Ins. Co., 590 N.E.2d 1242 (Ohio 1992) (dispute resolution provision in automobile
insurance contract was agreement to arbitrate); Stockwell v. Equitable Fire & Marine Ins.
Co., 25 P.2d 873 (Cal. Ct. App. 1933) (finding arbitration agreement where contract provided
for independent insurance appraisal). See also Adkins LP v. O Street Mgt, LLC, 56 A.3d 1159,
1166 (D.C. 2012) (“The rules governing review of agreements to determine property values
through an appraisal process are the same as those governing review of arbitration
agreements”).
218) See, e.g., Dwyer v. Fid. Nat’l Prop. & Cas. Ins. Co., 565 F.3d 284, 286 (5th Cir. 2009) (not
arbitration where insurance policy clause provided: “If you and we fail to agree on the
actual cash value or, if applicable, replacement cost of your damaged property to settle
upon the amount of loss, then either may demand an appraisal of the loss”); Penton Bus.
Media Holdings, LLC v. Informa plc, 2018 WL 3343495, at *9 (Del. Ch.) (appraisal not
arbitration); Gammel v. Ernst & Ernst, 72 N.W.2d 364 (Minn. 1955) (accountants not
arbitrators).
219) One study concluded that 24 states maintained the distinction between arbitration and
expert determination, 22 states have discarded the distinction, and four states have not
definitively decided the issue. See Colón Santiago, Insurance Appraisal and Arbitration, 8 U.
Puerto Rico Bus. L.J. 65, 74 (2016).
Federal appellate courts appear to be similarly divided. See Burkhart, Agree to Disagree:
The Circuit Split on the Definition of “Arbitration”, 92 U. Det. Mercy L. Rev. 57 (2015). See also
Penton Bus. Media Holdings, LLC v. Informa plc, 2018 WL 3343495, at *10 (Del. Ch.).
220) See, e.g., Adam Auto Group, Inc. v. Owners Ins. Co., 2019 WL 4934597, at *1 (N.D. Ill.)
(“Appraisal clauses in insurance policies are analogous to arbitration clauses, which courts
may enforce, and therefore courts may compel appraisal in appropriate circumstances”);
Herndon v. Am. Family Home Ins. Co., 2009 WL 775428, at *1 (D. Ariz.) (“Arizona courts treat
appraisal as ‘analogous to arbitration’ and apply the ‘principles of arbitration’ to
proceedings involving appraisal”); Guy v. EverHome Mortg. Co., 2008 WL 11422520 (C.D. Cal.);
Wojdak v. Greater Philadelphia Cablevision, Inc., 707 A.2d 214, 219 (Pa. 1998) (“[A] binding
determination by a third party appraiser is basically the equivalent of arbitration, and
judicial review thereof is governed by the Delaware Arbitration Act”); Waradzin v. Aetna Cas.
& Sur. Co., 570 A.2d 649 (R.I. 1990) (confirmation proceeding under state arbitration statute
permitted for appraisal); Reynoldsburg City Sch. Dist. v. Licking Heights Local Sch. Dist. Bd
of Educ., 2008 WL 4927406 (Ohio App.) (binding expert determination can be confirmed as
award); Lundy v. Farmers Group, Inc., 750 N.E.2d 314 (Ill. App. Ct. 2001) (appraisal clauses are
analogous to arbitration clauses); Meineke v. Twin City Fire Ins. Co., 892 P.2d 1365, 1369 (Ariz.
App. 1994) (“despite some differences between arbitration and appraisal, appraisal is
analogous to arbitration [and] we apply principles of arbitration law to this dispute”). See
also Omni Tech Corp. v. MPC Solutions Sales, LLC, 432 F.3d 797 (7th Cir. 2005) (fact that final,
binding accounting procedure is not “arbitration” does not prevent enforcement).
221) See, e.g., N.Y. Civil Practice & Law Rules, §7601 (courts empowered to “enforce such an
[appraisal] agreement as if it were an arbitration agreement”). See also Dimson v.
Elghanayan, 19 N.Y.2d 316, 324 (N.Y. 1967) (Section 7601 of CPLR authorizes courts “to treat
the proceeding brought to effect [enforcement of an appraisal agreement] as one brought
under the article (art. 75) relating to arbitration”).

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 222) See, e.g., Botai v. Safeco Ins. Co. of Ill., 2015 WL 4507486, at *4 (D. Idaho) (appraisal
“sufficiently similar to arbitration” under Idaho law); Herndon v. Am. Family Home Ins. Co.,
2009 WL 775428, at *1 (D. Ariz.) (compelling appraisal under FAA, noting “Arizona courts treat
appraisal as analogous to arbitration and apply the principles of arbitration to
proceedings involving appraisal”); Acme Roll Forming Co. v. Home Ins. Co., 110 F.Supp.2d
567, 569 (E.D. Mich. 2000) (appraisal is “similar to an arbitration clause”); Phifer-Edwards,
Inc. v. Hartford Fire Ins. Co., 1994 WL 236225, at *7 (Ohio App.) (“This relief is much like the
statutory procedure followed under [state arbitration statutes], but it is not the same
because the authority to provide such relief stems from the common law”); Lynch v. Am.
Family Mut. Ins. Co., 473 N.W.2d 515, 518 (Wis. App. 1991) (“[T]here is no statutory authority to
stay a lawsuit commenced prior to a demand for appraisal, [but] a proper demand for an
appraisal … transforms completion of the appraisal process into a condition precedent to
the lawsuit”).
223) See, e.g., Fed. Ins. Co. v. Anderson, 2019 WL 8128570, at *4 (N.D. Cal.) (“Accordingly, an
appraisal provision is the proper subject of a motion to compel arbitration under either
the FAA or CAA”); Harvey Prop. Mgt Co. v. Travelers Indem. Co., 2012 WL 5488898, at *3 (D.
Ariz.) (insurance policy calling for “appraisal” was subject to FAA); Pavlina v. Safeco Ins. Co.
of Am., 2012 WL 5412796 (N.D. Cal.) (same); McLaughlin v. Day & Zimmerman Int’l, Inc., 2009
WL 10689227 (E.D. Va.) (disputes referred to accountants were not expert determinations
but arbitrations); Chapman v. Westerner, 202 P.3d 517, 519 (Ariz. Ct. App. 2008) (judicial
review of appraisal is same as that of arbitral award); David Wilson Homes Ltd v. Survey
Servs. Ltd [2001] BLR 267 (English Ct. App.); Walkinshaw v. Diniz [2000] 2 All ER 237 (Comm)
(English High Ct.); PT Tugu Pratama Indonesia v. Magma Nusantara Ltd, [2003] SGHC 204
(Singapore High Ct.) (“appraisers” treated as arbitrators); Methanex Motunui Ltd v.
Spellman, [2004] 1 NZLR 95 (Auckland High Ct.) (“expert” treated as arbitrator).
224) See, e.g., Judgment of 26 November 1991, DFT 117 IA 365 (Swiss Fed. Trib.) (report of experts
determining transfer price of shares characterized as arbitral award); Judgment of 23
February 1999, Econerg Ltd v. Nat’l Elec. Co. , XXV Y.B. Comm. Arb. 678, 681 (Bulgarian S.Ct.)
(2000) (arbitral award defined as “judicial procedure act”).
225) See §12.03; §15.02; §23.02.
226) For commentary, see N. Alexander, Global Trends in Mediation ¶¶1.7.2-3 (2d ed. 2006); N.
Alexander, International and Comparative Mediation: Legal Perspectives ¶¶1-2, 8-12, 27-51
(2009); K.-P. Berger, Private Dispute Resolution in International Business: Negotiation,
Mediation, Arbitration 27-28 (3d ed. 2015); H. Brown & A. Marriott, ADR Principles and Practice
¶¶6-001 to 016, 8-001 to 021 (3d ed. 2012); Cuperlier, Une Nouvelle Avancée de la
Médiation?, 2009 JCP G 26, 43; de Boisséson, Thoughts on the Future of ADR in Europe: A
Critical Approach , 15 Arb. Int’l 349 (1999); M. Freeman, Alternative Dispute Resolution (1995);
K. Kovach, Mediation: Principles and Practice (3d ed. 2004); Lack, Appropriate Dispute
Resolution (ADR): The Spectrum of Hybrid Techniques Available to the Parties, in J.-C.
Goldsmith, A. Ingen-Housz & G. Pointen (eds.), ADR in Business: Practice and Issues Across
Countries and Cultures 353 (2011); K. Mackie, D. Miles & W. Marsh, The ADR Practice Guide:
Commercial Dispute Resolution (3d ed. 2007); M. McIlwrath & J. Savage, International
Arbitration and Mediation: A Practical Guide ¶¶4-001 to 5-294 (2010); P. Sanders, The Work of
UNCITRAL on Arbitration and Conciliation (2d ed. 2004); Stipanowich, The Arbitration
Penumbra: Arbitration Law and the Rapidly Changing Landscape of Dispute Resolution, 8 Nev.
L.J. 427 (2007).
227) In many instances, mediation or conciliation will not even produce a non-binding
expression of opinion, recommendation, or similar advisory evaluation by the mediator or
conciliator. Instead, the mediator will only report the parties’ positions and raise
questions about their respective cases.
228) Barker, International Mediation: A Better Alternative for the Resolution of Commercial
Disputes, 19 Loy. L.A. Int’l & Comp. L. Rev. 1, 8-15 (1996). See also U.N. Economic and Social
Council, Report of the Secretary-General, Possible Uniform Rules on Certain Issues
Concerning Settlement of Commercial Disputes: Conciliation, Interim Measures of Protection,
Written Form for Arbitration Agreement, U.N. Doc. A/CN.9/WG.II/WP.108, ¶11 (2000). See also
Judgment of 2 December 2020, 2021 Tijdschrift 2, 102 (Rotterdam Rechtbank) (mediation
agreement does not deprive court of jurisdiction: “A mediation clause cannot be equated
with an arbitration clause or a clause in which parties have agreed to submit a dispute
arising between them to a binding adviser”); Judgement of 25 March 2022, Case No.
2025049-43.2022.8.26.0000 (Sao Paulo Ct. App.) (mediation clauses not enforceable as
arbitration clauses).

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 229) J. Moore, VII Digest of International Law 25 (1906). See also Mentschikoff, The Significance of
Arbitration: A Preliminary Inquiry, 17 Law & Contemp. Probs. 698, 698 (1952) (“Mediation or
conciliation or negotiation are means of compromising disputes on a give-and-take basis
and as informal compromises combine to constitute a distinct and well recognized phase
of trouble shooting”).
230) See §1.02[B][3] & §1.02[B][5]; §25.02[B]; §26.05[C][12].
231) See UNCITRAL Model Law on International Commercial Conciliation with Guide to
Enactment and Use (2002); UNCITRAL Model Law on International Commercial Mediation
and International Settlement Agreements Resulting from Mediation (2018); §1.04.
Legislation based on the UNCITRAL Model Law on International Commercial Conciliation
has been enacted in Albania (2011), Belgium (2005), Benin (2017), Bhutan (2013), Burkina
Faso (2017), Cameroon (2017), the Canadian provinces of Nova Scotia (2005) and Ontario
(2010), Central African Republic (2017), Chad (2017), Comoros (2017), Congo (2017), Côte
d’Ivoire (2017), Croatia (2003), Democratic Republic of Congo (2017), Equatorial Guinea
(2017), France (2011), Gabon (2017), Guinea (2017), Guinea-Bissau (2017), Honduras (2000),
Hungary (2002), Luxembourg (2012), Malaysia (2012), Mali (2017), Montenegro (2005),
Nicaragua (2005), Niger (2017), North Macedonia (2009), Senegal (2017), Slovenia (2008),
Switzerland (2008), Togo (2017), and the U.S. states of Hawaii (2013), Idaho (2008), Illinois
(2004), Iowa (2005), Nebraska (2003), New Jersey (2004), Ohio (2005), South Dakota (2007),
Utah (2006), Vermont (2005), Washington (2005) and the District of Columbia (2006). See
also California Code of Civil Procedure, §§1297.11-432; Brazilian Mediation Law, 2015.
232) See Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 of
Certain Aspects of Mediation in Civil and Commercial Matters, Art. 1(1) (“The objective of
this Directive is to facilitate access to alternative dispute resolution and to promote the
amicable settlement of disputes by encouraging the use of mediation and by ensuring a
balanced relationship between mediation and judicial proceedings”); European
Parliament, Report on the Implementation of the Directive on Mediation in the Member
States, Its Impact on Mediation and Its Take-up by the Courts, Resol. No. 2011/2026(INI),
Preamble ¶F (2011).
233) As discussed elsewhere, the Singapore Mediation Convention recently came into force,
providing an international legal framework for the recognition of settlement agreements
achieved through mediation. See §2.02[C][2][e] .
234) ICSID Convention, Chapter III, Arts. 28-35. Chapter III was implemented in ICSID’s Rules of
Procedure for Conciliation Proceedings (first promulgated in 1966 and subsequently
revised in 1984 and 2006). 2006 ICSID Conciliation Rules. See also Parra, The Development of
the Regulations and Rules of the International Centre for Settlement of Investment Disputes,
41 Int’l Law. 47 (2007).
235) 2012 China Council for the Promotion of International Trade/China Chamber of Commerce
(CCPIT/CCOIC) Mediation Rules; 2002 DIS Mediation Rules; 2010 DIS Mediation Rules; 2010
DIS Conflict Management Rules; 2014 Singapore International Mediation Centre Mediation
Rules.
236) The ICC first adopted conciliation rules in 1922, immediately preceding the establishment
of the ICC Court. The Rules were revised extensively in 1988, replaced in 2001 by the ICC
ADR Rules, and most recently replaced in 2014 by the ICC Mediation Rules. See ICC, Rules of
Arbitration 46 (1997); ICC, Rules of Conciliation and Arbitration 8 (1987); ICC, The New ICC
Mediation Rules, 24(2) ICC Ct. Bull. 5 (2013); Schwartz, International Conciliation and the ICC,
5(2) ICC Ct. Bull. 5 (1994).
237) 2022 AAA Commercial Arbitration Rules and Mediation Procedures, Arts. M1-M17; 2021 ICDR
International Mediation Rules, Arts. M1-M19. See AAA, Mediation Procedures Summary of
Changes (2007).
238) WIPO revised its Mediation Rules in 2021. See 2021 WIPO Mediation Rules.
239) 2017 CPR International Mediation Procedure.

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 240) See §2.02[C][2][a]; Advanced Bodycare Solutions v. Thione, 524 F.3d 1235, 1240 n.4 (11th Cir.
2008) (“Normally labels do not control; indeed, if an agreement specifies in detail a
dispute resolution procedure which it calls ‘mediation’ (or anything else) but which is, in
substance, FAA ‘arbitration,’ substance controls over title”); Harrell’s, LLC v. Agrium
Advanced (U.S.) Tech., Inc., 795 F.Supp.2d 1321 (M.D. Fla. 2011) (same); Schofield v. Int’l Dev.
Group Co., 2006 WL 504058 (W.D. Tex.) (despite parties referring dispute to “independent
auditor,” other characteristics of agreement were for arbitration); Champagne v. Victory
Homes, Inc., 897 A.2d 803, 805 (Me. 2006) (court’s order that matter proceed to non-binding
arbitration rendered arbitration equivalent to mediation); High Valley Homes, Inc. v.
Fudge, 2003 WL 1882261, at *4 (Tex. App.) (despite use of word “mediation” to describe
dispute resolution, parties evidenced intention to be finally bound by decision; agreement
was for arbitration); AIG Europe SA v. QBE Int’l Ins. Ltd [2001] 2 Lloyd’s Rep. 268 (QB) (English
High Ct.) (clause titled “Arbitral Procedure,” and referring to “arbitrator” held to constitute
conciliation agreement).
241) See Flight Training Int’l v. Int’l Fore Training Equip. [2004] EWHC 721 (Comm) (English High Ct.)
(agreement referring to institution providing conciliation, mediation and arbitration
services construed as mediation clause); Hurdsman v. Ekactrm Solutions Pty Ltd, [2018]
SASC 112 (S. Australia Sup. Ct.) (clause calling for disputes to be referred to “third party”
described as “mediator,” deciding dispute under SIAC Arbitration Rules, was “too
ambiguous” to be arbitration agreement).
242) See Rau, The Culture of American Arbitration and the Lessons of ADR, 40 Tex. Int’l L.J. 449,
467-69 (2005) (non-binding arbitration: “the parties may think that a ‘trial run’ of the case,
ending in a prediction by a neutral expert, may cause the more recalcitrant among them to
reassess their own partisan estimates of the likely outcome of adjudication”).
243) See Advanced Bodycare Solutions v. Thione, 524 F.3d 1235, 1240 (11th Cir. 2008) (“In short,
because the mediation process does not purport to adjudicate or resolve a case in any
way, it is not ‘arbitration’ within the meaning of the FAA”); Dluhos v. Strasberg, 321 F.3d 365,
372-73 (3d Cir. 2003) (proceedings under ICANN UDRP are not arbitration subject to FAA,
which “applies only to binding proceedings likely to ‘realistically settle the dispute’”);
Mirra Co., Inc. v. Sch. Admin. Dist. No. 35, 251 F.3d 301, 304 (1st Cir. 2001) (no agreement to
arbitrate when clause requires non-binding mediation); Lander Co. v. MMP Invs., Inc., 107
F.3d 476, 480 (7th Cir. 1997); Harrison v. Nissan Motor Corp., 111 F.3d 343 (3d Cir. 1997)
(informal dispute resolution procedure is not “arbitration” under FAA); Nygaard v. Prop.
Damage Appraisers, Inc., 2017 WL 1128471, at *2 (E.D. Cal.) (“Mediation and arbitration are
distinct procedures, both in the License Agreement and under the [FAA]”); Auto-Owners Ins.
Co. v. Summit Park Townhome Ass’n, 129 F.Supp.3d 1150 (D. Colo. 2015) (appraisal process is
not “arbitration” within meaning of FAA); Harrell’s, LLC v. Agrium Advanced (U.S.) Techs., Inc.,
795 F.Supp.2d 1321, 1328 (M.D. Fla. 2011); Gray v. Province-Grace, LLC, 2009 WL 259401, at *4
(N.D. Ga.) (“because the alternative dispute mechanism in the Declaration provides for
nonbinding mediation, the court finds that it is not governed by the [FAA]”); Exxon Mobil
Corp. v. Saudi Basic Indus. Corp., 941 F.Supp.2d 513 (D.N.J. 2005) (non-binding dispute
resolution did not qualify as arbitration). See also Stipanowich, Contract and Conflict
Management, 2001 Wis. L. Rev. 831, 840 (“binding arbitration involves (a) an agreement; (b)
to settle controversies; (c) through an adjudicative process; (d) before a private third party
or parties; (e) who render a legally binding award”). But see Sekisui Ta Indus., LLC v. Quality
Tape Supply, Inc., 2009 WL 2170500, at *3, 5 (D. Md.) (“[T]he court will assume that mediation
is a form of alternate dispute resolution that falls within the ambit of the term
arbitration”).
244) Salt Lake Tribune Publ’g Co., LCC v. Mgt Planning, Inc., 390 F.3d 684, 689 (10th Cir. 2004).
245) Gate Precast Co. v. Kenwood Towne Place, LLC, 2009 WL 3614931, at *4 (S.D. Ohio).
246) See, e.g., Brennan v. King, 139 F.3d 258, 265-66 (1st Cir. 1998) (no arbitration agreement
because tribunal could only recommend a non-binding result); Red Brick Partners-
Brokerage, LLC v. Staubach Co., 2008 WL 2743689 (N.D. Fla.) (no arbitration agreement
because dispute resolution mechanism provided for was neither exclusive nor mandatory;
parties could seek alternative methods of dispute resolution); Schaefer v. Allstate Ins. Co.,
590 N.E.2d 1242 (Ohio 1992); Miss. State Port Auth. at Gulfport v. S. Indus. Contractors LLC, 271
So.3d 742 (Miss. Ct. App. 2018) (no binding arbitration agreement because arbitration not
sole remedy); Judgment of 17 June 2004, Le Parmentier v. La Société Miss France , XXX Y.B.
Comm. Arb. 119, 123-24 (Paris Cour d’Appel) (2005) (provision that “allows for a recourse to
state courts to have the dispute re-adjudged” not arbitration); Judgment of 20 May 2005,
2006 SchiedsVZ 103, 105 (Oberlandesgericht Naumburg) (no arbitral award where main
agreement provided that disputes should “at first” be decided by conciliation and then
referred to a local court).

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 247) Dluhos v. Strasberg, 321 F.3d 365 (3d Cir. 2003) (UDRP dispute resolution proceeding is not
subject to the FAA because “no provision … prevents a party from filing suit before, after or
during the administrative proceedings”).
248) See §5.04[D].
249) See, e.g., Judgment of 17 June 2004, Le Parmentier v. La Société Miss France , XXX Y.B. Comm.
Arb. 119, 123-24 (Paris Cour d’Appel) (2005) (Uniform Domain Name Resolution Policy
dispute resolution proceeding is not arbitration because it “allows for a recourse to state
courts to have the dispute re-adjudged, both before the administrative proceeding is
commenced and after it is concluded and, … during the proceeding”); Judgment of 23 March
1989, Clause France v. Coopérative Agricole de l’Aunis , 1990 Rev. Arb. 713 (Paris Cour
d’Appel).
250) See, e.g., Flight Training Int’l v. Int’l Fore Training Equip. [2004] EWHC 721 (Comm) (English
High Ct.) (reference to “mediation” is not arbitration agreement); Walkinshaw v. Diniz [2000]
2 All ER 237, 254 (Comm) (English High Ct.) (agreement “must contemplate that the tribunal
which carries on the process will make a decision which is binding on the parties”).
251) See, e.g., Kenon Eng’g Ltd v. Nippon Kokan Koji KK, [2004] HKCA 101 (H.K. Ct. App.) (reference
to “mediation” could not have been intended to be arbitration).
252) See, e.g., Judgment of 23 December 2015, 34 SchH 10/15 (Oberlandesgericht München)
(distinction between arbitration and expert determination); Judgment of 18 September
2006, 2006 BeckRS 12525 (Oberlandesgericht Rostock) (if dispute resolution clause allows
parties to revert to national courts if attempt to settle dispute fails, clause constitutes
conciliation agreement rather than arbitration agreement); Judgment of 20 May 2005, 2006
SchiedsVZ 103 (Oberlandesgericht Naumburg). See also Kreissl, Mediation: Von der
Alternative zum Recht zur Integration in das Staatliche Konfliktlösungssystem , 2012
SchiedsVZ 119, 234; Wagner, Scope of Application , in K.-H. Böckstiegel, S. Kröll & P.
Nacimiento (eds.), Arbitration in Germany: The Model Law in Practice 53, 57 (2d ed. 2015).
253) See Judgment of 17 June 2004, Le Parmentier v. La Société Miss France , XXX Y.B. Comm. Arb.
119 (Paris Cour d’Appel) (2005).
254) See id.; Judgment of 29 April 2003, Nationale des Pétroles du Congo v. Total Fina Elf E & P
Congo , 21 ASA Bull. 662, 665 (Paris Cour d’Appel) (2003) (ICC Pre-Arbitral Referee procedure
is not arbitration, but merely a contractual mechanism; decision of pre-arbitral referee
may not be set aside).
255) See, e.g., David Wilson Homes Ltd v. Survey Servs. Ltd [2001] BLR 267, ¶15 (English Ct. App.)
(“In the present case, the parties cannot, with respect to the judge, have intended a
reference to a Queen’s Counsel as an expert or for a non-binding opinion, because in that
way no finality could be achieved. They must in my judgment have wanted a binding result,
and the clause thus constitutes an arbitration agreement”); O’Callaghan v. Coral Racing Ltd
[1998] All ER (D) 607 (English Ct. App.); Berkeley Burke SIPP Admin. LLP v. Charlton [2017]
EWHC 2396 (English High Ct.) (decision of “arbitrator” was not binding on parties); Judgment
of 8 February 1995, 14 ASA Bull. 695, 698 (Valais Tribunal) (1996) (“The fundamental criterion
for the distinction between the two institutions is that the award of an arbitrator, contrary
to the one of an arbitral expert, is an act creating legal obligations”); Judgment of 4 July
1977, 1977 DB 1786 (German Bundesgerichtshof); Judgment of 20 May 2005, 2006 SchiedsVZ
103, 105 (Oberlandesgericht Naumburg) (no arbitration where agreement permitted parties
to refer dispute to national court); Judgment of 17 April 2000, 10 Sch 01/00
(Oberlandesgericht Naumburg) (party’s right of recourse to court inconsistent with
definition of arbitration); Clark v. Argyle Consulting Ltd, [2010] CSOH 154 (Scottish Session
Ct.) (Financial Ombudsman was not arbitrator in part because complainant had option to
accept or reject decision).

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 256) See Dow Corning Corp. v. Safety Nat’l Cas. Corp., 335 F.3d 742, 747 (8th Cir. 2003) (“Binding
arbitration is no doubt the norm under the FAA, but no express language limits the statute
to binding arbitration agreements. Other circuits have held that the FAA applies to at least
some agreements to engage in mandatory, non-binding arbitration”); U.S. v. Bankers Ins.
Co., 245 F.3d 315, 322 (4th Cir. 2001); Wolsey, Ltd v. Foodmaker, Inc., 144 F.3d 1205, 1207 (9th
Cir. 1998) (“non-binding arbitration” under AAA Rules held subject to FAA); Lei v. Amway
Corp., 2014 WL 12596787, at *6 (C.D. Cal.) (“The Court therefore holds that the FAA, which
requires rigorous enforcement of arbitration provisions, applies to the Conciliation
Provision”); Fisher v. GE Med. Sys., 276 F.Supp.2d 891, 893 (M.D. Tenn. 2003) (“‘[A]rbitration’ in
the FAA is a broad term that encompasses many forms of dispute resolution”); AMF Inc. v.
Brunswick Corp., 621 F.Supp. 456, 459-61 (S.D.N.Y. 1985) (in agreement to seek “rendition of
an advisory opinion … [enforceable] … under the [FAA] and pursuant to this court’s equity
jurisdiction,” “whether or not the agreement be deemed one to arbitrate … [there is no
reason not to enforce] … a confidential advisory process in a matter of serious concern to
the parties”). See also Rau, The Culture of American Arbitration and the Lessons of ADR, 40
Tex. Int’l L.J. 449, 468 (2005) (“agreements for non-binding arbitration are regularly held to
be within the FAA for the purposes of stays or orders to compel”). Compare Stipanowich,
Contract and Conflict Management, 2001 Wis. L. Rev. 831, 863 (“[T]he statute-based law of
arbitration is a wholly inappropriate ground for enforcement of mediation agreements”).
257) Fisher v. GE Med. Sys., 276 F.Supp.2d 891, 894 (M.D. Tenn. 2003).
258) See, e.g., Mitsubishi Elec. Corp. v. Westcode, Inc., 2016 WL 3748023, at *2 (N.D.N.Y.) (“The FAA
applies to contracts seeking to settle a case by reference to a third party mediator
regardless of if the clause specifically identifies arbitration, or some other form of
mediation, as the vehicle to resolve the dispute”); Eichinger v. Kelsey-Hayes Co., 2010 WL
2720931, at *5 (E.D. Mich.) (ability to “decline the decision and award does not mean the
arbitration procedure is unenforceable under the FAA”); Mostoller v. Gen. Elec. Co., 2009 WL
3854227, at *2 (S.D. Ohio) (“The FAA does not require that a dispute resolution procedure be
binding in order to be considered ‘arbitration’ for purposes of a motion to compel
arbitration”); CB Richard Ellis, Inc. v. Am. Environmental Waste Mgt, 1998 WL 903495, at *2
(E.D.N.Y.) (mediation agreement “manifests the parties’ intent to provide an alternative
method to ‘settle’ controversies [and therefore] … fits within the [FAA’s] definition of
arbitration”); Cecala v. Moore, 982 F.Supp. 609 (N.D. Ill. 1997) (same).
259) Medellin v. Tex., 552 U.S. 491, 507 (U.S. S.Ct. 2008).
260) Where an agreement to participate in a process producing a non-binding decision is made,
it does not constitute an agreement to arbitrate, whatever its label, but rather an
agreement to conciliate or to mediate. See §2.02[C][2][c].
261) See, e.g., U.S. v. Bankers Ins. Co., 245 F.3d 315, 323 (4th Cir. 2001) (enforcing “non-binding
arbitration clause”); Willis Corroon Corp. v. United Capitol Ins. Co., 1998 WL 30069, at *2 (N.D.
Cal.) (dismissing suit based on “non-binding mediation” agreement that was condition
precedent to litigation); Gaston v. Gaston, 954 P.2d 572, 575 (Ala. 1998) (granting order
requiring parties to mediate); White v. Kampner, 641 A.2d 1381, 1382 (Conn. 1994) (enforcing
“mandatory negotiation” clause that stated “[t]he parties shall negotiate in good faith at
not less than two negotiation sessions prior to seeking any resolution of any dispute” under
the contract’s arbitration provision); Laeyt v. Laeyt, 702 N.Y.S.2d 207 (N.Y. App. Div. 2000)
(dismissing suit because of failure to comply with mediation obligation); Aiton Australia Pty
Ltd v. Transfield Pty Ltd, [1999] 153 FLR 236 (N.S.W. Sup. Ct.).
262) See §1.02[B][3]; §5.08[A]. See also Cumberland & York Distribs. v. Coors Brewing Co., 2002 WL
193323, at *4 (D. Me.) (declining to enforce mediation provision that had “no time limit for
completion of such mediation”); File, United States: Multi-Step Dispute Resolution Clauses,
3(1) IBA Mediation Comm. Newsletter 33, 34-35 (2007).
263) See United Nations Convention on International Settlement Agreements Resulting from
Mediation (2018) (“Singapore Convention”).
264) For a list of signatories, see UNCITRAL, Status: United Nations Convention on International
Settlement Agreements Resulting from Mediation, available at uncitral.un.org. See generally
Silvestri, The Singapore Convention on Mediated Settlement Agreements: A New String to the
Bow of International Mediation, 2 Access Just. E. Euro. 5 (2019); Strong, Realizing Rationality:
An Empirical Assessment of International Commercial Mediation, 73 Wash. & Lee L. Rev. 1973
(2016) (discussing need for harmonized framework for enforcement of international
settlement agreements resulting from mediation).

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 265) The Singapore Mediation Convention comes into force six months after three countries
have ratified, accepted, approved, or acceded to the Convention. The three countries that
first ratified the Convention were Fiji and Singapore (both on 25 February 2020) and Qatar
(12 March 2020). Fifty-seven countries have signed the Convention since it opened for
signature on 7 August 2019. The latest countries that have ratified the Convention include,
Saudi Arabia on 5 May 2020, Belarus on 15 July 2020, Ecuador on 9 September 2020,
Honduras on 2 September 2021, Georgia on 29 December 2021, Kazakhstan on 23 May 2022,
Turkiye on 11 October 2021, and Uruguay on 28 March 2023.
266) See, e.g., Award in Hamburg Friendly Arbitration Case of 27 May 2002, XXX Y.B. Comm. Arb. 17
(2005) (parties engaged in two separate arbitrations of their dispute, one regarding issue of
payment and one regarding quality of goods delivered).
267) There is little question that the definition of arbitration does not include sports referees.
Locklear, Arbitration in Olympic Disputes: Should Arbitrators Review the Field of Play
Decisions of Officials, 4 Tex. Rev. Ent. & Sports L. 199 (2003).
268) See, e.g., Quasem Group, Ltd v. W.D. Mask Cotton Co., 967 F.Supp. 288 (W.D. Tenn. 1997);
Judgment of 30 January 1992, Sifca v. Continaf BV , 1993 Rev. Arb. 123 (Paris Cour d’Appel).
269) C. Freedman & J. Farrell, Kendall on Expert Determination ¶16.6.7 (5th ed. 2015); R. Merkin,
Arbitration Law ¶3.5 (1991 & Update July 2023).
270) Karstaedt & Graf, Trade Arbitration in Germany , in K.-H. Böckstiegel, S. Kröll & P.
Nacimiento (eds.), Arbitration in Germany: The Model Law in Practice 795, 797 (2d ed. 2015)
(“In the beginning, trade-related arbitrations were primarily concerned with the quality
and condition of the commodities”); Lionnet, Arbitration and Mediation: Alternatives or
Opposites, 4(1) J. Int’l Arb. 69, 74 n.3 (1987); Rau, The Culture of American Arbitration and the
Lessons of ADR, 40 Tex. Int’l L.J. 449, 492 (2005) (“[I]t is a proposition of some antiquity that
arbitration has had its greatest value in providing expert determinations with respect to
‘the ordinary disputes between merchants as to questions of fact – quantity, quality, time
of delivery … and the like’”) (quoting Cohen & Dayton, The New Federal Arbitration Law, 12
Va. L. Rev. 265, 281 (1926)).
271) London Exp. Corp. Ltd v. Jubilee Coffee Roasting Co. Ltd [1958] 1 All ER 494, 501 (QB) (English
High Ct.).
272) In Austria, quality arbitration is apparently a form of valuation, which is regarded as
distinct from arbitration. See Judgment of 26 May 2020, 9 Ob 18/20t (Austrian Oberster
Gerichtshof) (expert determination distinguished from arbitration); Judgment of 27 March
1985, 1 Ob 504/85 (Austrian Oberster Gerichtshof) (expert determination distinguished from
arbitration).
273) See §1.02[B][6]; §15.01-§15.03; §25.04[B].
274) See §5.01[D].
275) In a few jurisdictions, national arbitration legislation provides expressly that quality
arbitrations are “arbitration.” In the Netherlands, for example, arbitration is statutorily
defined to include “the determination only of the quality or condition of goods.” See
Netherlands Code of Civil Procedure, Art. 1020(4).
276) See Malin, Two Models of Interest Arbitration, 28 Ohio St. J. Disp. Resol. 145 (2013); Rau, The
Culture of American Arbitration and the Lessons of ADR, 40 Tex. Int’l L.J. 449, 473 (2005)
(“[T]he ‘interest’ arbitrator is expected to go still further [beyond deciding the parties’
existing rights] – and to devise the actual contract provisions that will bind the parties
during a future term”).
277) See E. Gaillard & J. Savage (eds.), Fouchard Gaillard Goldman on International Commercial
Arbitration ¶¶33-43 (1999).
278) See Argumedo Piñeiro, Multi-Step Dispute Resolution Clauses, in M. Fernándes-Ballesteros &
D. Arios (eds.), Liber Amicorum Barnardo Cremades 733, 733 (2010); Baizeau, Multi-Tiered and
Hybrid Arbitration Clauses, in M. Arroyo (ed.) Arbitration in Switzerland: The Practitioner’s
Guide 2781 (2d ed. 2018); G. Born, International Arbitration and Forum Selection Agreements:
Drafting and Enforcing 105-07 (6th ed. 2021); Born & Scekic, Pre-Arbitration Procedural
Requirements: “A Dismal Swamp,” in D. Caron et al. (eds.), Practising Virtue: Inside
International Arbitration 227 (2015); Jolles, Consequences of Multi-Tier Arbitration Clauses:
Issues of Enforcement, 72 Arb. 329 (2006); M. McIlwrath & J. Savage, International Arbitration
and Mediation: A Practical Guide ¶1-196 (2010); Tevendale, Ambrose & Naish, Multi-Tier
Dispute Resolution Clauses and Arbitration, 1 Turkish Comm. L. Rev. 31 (2015). See also
§5.08[A].

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 279) Requiring mediation and other forms of conciliation prior to commencing arbitration is
also often termed “med-arb.” See Bartel, Med-Arb as A Distinct Method of Dispute
Resolution: History, Analysis, and Potential, 27 Willamette L. Rev. 661, 663 (1991); Berger, Law
and Practice of Escalation Clauses , 22 Arb. Int’l 1 (2006); Blankenship, Developing Your ADR
Attitude, 42 Tenn. Bar J. 28 (2006); Jolles, Consequences of Multi-Tier Arbitration Clauses:
Issues of Enforcement, 72 Arb. 329 (2006); Mähler & Mähler, in Hamm (ed.), Beck’sches
Rechtsanwalts-Handbuch §48, ¶9 (2022); Onyema, The Use of Med-Arb in International
Commercial Dispute Resolution, 12 Am. Rev. Int’l Arb. 411 (2001); Pappas, Med-Arb and the
Legalization of Alternative Dispute Resolution, 20 Harv. Neg. L. Rev. 157 (2015).
280) See Brewer & Mills, Combining Mediation and Arbitration, 54 Disp. Resol. J. 32, 33-34 (1999);
Coulson, Medaloa: A Practical Technique for Resolving International Business Disputes , 11(2)
J. Int’l Arb. 111 (1994); Hill, MED-ARB: New Coke or Swatch, 13 Arb. Int’l 105 (1997); Horvath,
Schiedsgerichtsbarkeit und Mediation – Ein glückliches Paar?, 2005 SchiedsVZ 292, 298-300
(2005); Pryles, Multi-Tiered Dispute Resolution Clauses , 18 J. Int’l Arb. 159, 159 (2001) (“It is
now common to find multi-tiered dispute resolution clauses particularly in complex
construction contracts”); Queen Mary, University of London, 2018 International Arbitration
Survey: The Evolution of International Arbitration 6, 8 (2018); Stipanowich, Arbitration: The
“New Litigation”, 2010 U. Ill. L. Rev. 1, 29 (“Similar multistep dispute resolution provisions
are now become ubiquitous in commercial contracts and related court decisions”); Tomic,
Multi-Tiered Dispute Resolution Clauses: Benefits and Drawbacks, 2017 J. Legal & Soc. Stud. S.
E. Euro. 360.
281) See §5.08[A].
282) See Heartronics Corp. v. EPI Life Pte Ltd, [2017] SGHCR 17, ¶111 (Singapore High Ct.) (med-arb
clause was not two distinct agreements that could be severed, but “unitary dispute
resolution mechanism,” that constituted “arbitration agreement”). See also Salehijam, The
Role of the New York Convention in Remedying the Pitfalls of Multi-Tiered Dispute Resolution
Clauses, in K. Fach Gomez & A. Lopez-Rodriguez (eds.), 60 Years of the New York Convention:
Key Issues and Future Challenges 35 (2019).
283) See, e.g., Order in ICC Case No. 14079, in ICC, Decisions on ICC Arbitration Procedure 7 (2015).
284) Channel Tunnel Group Ltd v. Balfour Beatty Constr. Ltd [1993] AC 334, 358 (House of Lords).
This result has been statutorily confirmed in England. English Arbitration Act, 1996, §9(2)
(stay of litigation available “notwithstanding that the matter is to be referred to
arbitration only after the exhaustion of other dispute resolution procedures”); Cable &
Wireless plc v. IBM U.K. Ltd [2002] EWHC 2059 (Comm) (English High Ct.). See also Krauss, The
Enforceability of Escalation Clauses Providing for Negotiations in Good Faith Under English
Law, 2 McGill J. Disp. Resol. 142 (2015-2016); Melnyk, The Enforceability of Multi-Tiered Dispute
Resolution Clauses: The English Law Position, 2002 Int’l Arb. L. Rev. 113 (2002); Mitrovic,
Dealing with the Consequences of Non-Compliance with Mandatory Pre-Arbitral Requirements
in Multi-Tiered Dispute Resolution Clauses: The Swiss Approach and A Look Across the Border ,
2019 ASA Bull. 559, 560.
285) See, e.g., Welborn Clinic v. MedQuist, Inc., 301 F.3d 634 (7th Cir. 2002); Fluor Enters., Inc. v.
Solutia Inc., 147 F.Supp.2d 648 (S.D. Tex. 2001); Dave Greytak Enters., Inc. v. Mazda Motors of
Am., Inc., 622 A.2d 14, 23-24 (Del. Ch. 1992) (“The highly detailed non-judicial dispute
resolution procedures [begin] with management review, [progress] to a stipulation as to
the facts and issues in dispute, [move] to third-party resolution, and, finally, to binding
arbitration”); Gary Excavating, Inc. v. Town of New Haven, 318 A.2d 84, 85 (Conn. 1972)
(disputes under contract were to be presented to defendants for decision, and if plaintiff
disagreed with defendants’ decision, it could demand arbitration; whether pre-arbitration
procedures were followed is issue for arbitration); Guangdong Agric. Co. v. Conagra Int’l (Far
E.) Ltd, [1993] HKLR 113 (H.K. Ct. First Inst.) (arbitration agreement exists and is valid
notwithstanding provision that parties first seek settlement).
286) Westco Airconditioning Ltd v. Sui Chong Constr. & Eng’g Co., [1998] 1 HKC 254, 255 (H.K. Ct.
First Inst.).
287) Kemiron Atl., Inc. v. Aguakem Int’l, Inc., 290 F.3d 1287, 1291 (11th Cir. 2002) (“[T]he parties
agreed to conditions precedent and, by placing those conditions in the contract, the
parties clearly intended to make arbitration a dispute resolution mechanism of last resort
… [therefore,] [b]ecause neither party requested mediation, the arbitration provision has
not been activated and the FAA does not apply”). See also §5.08[A]; Judgement of 1
September 2021, Case No. 1043586-03.2019.8.26.0100 (Sao Paulo Ct. App.) (if “parties have
agreed on a mediation clause, any arbitral proceedings or judicial action commenced [in
violation of mediation clause] shall be stayed until the parties have attended a mediation
procedure”).

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 288) It makes little sense to permit litigation during an interim period, which could only
undermine or preempt the agreed arbitral process. The agreement to arbitrate should
include any associated steps necessary to trigger an arbitration.
289) See §8.03[C][1].
290) Glencot Dev. & Design Co. v. Ben Barrett & Son (Contractors) Ltd [2001] BLR 207 (QB) (English
High Ct.); Acorn Farms Ltd v. Schnuriger, [2003] 3 NZLR 121 (Hamilton High Ct.). See also
Stipanowich & Fraser, The International Task Force on Mixed Mode Dispute Resolution:
Exploring the Interplay Between Mediation, Evaluation and Arbitration in Commercial Cases,
40 Fordham Int’l L.J. 839, 852 (2017). See also §12.05[K].
291) See Bruner, “Initial Decision Maker”: The New Independent Dispute Resolver in American
Private Building Contracts, 27 Int’l Constr. L. Rev. 375 (2011); Dreifus, The “Engineer Decision”
in California Public Contract Law, 11 Pub. Cont’l L.J. 1 (1979).
292) See Chan, Construction Industry Adjudication: A Comparative Study of International Practice ,
22 J. Int’l Arb. 363 (2005); Genton & Schwab, The Role of the Engineer in Disputes Related
More Specifically to Industrial Projects , 17(4) J. Int’l Arb. 1 (2000); Molineaux, Settlements in
International Construction, 50 Disp. Resol. J. 80 (1995).
293) The Federation Internationale des Ingénieurs-Conseils (“FIDIC”) published the so-called
“Red Book” (Conditions of Contract for Works of Civil Engineering Construction) in 1987. The
FIDIC contract traditionally provided for the “engineer” to render preliminary decisions
with which the parties were contractually obliged to comply, subject to further dispute
resolution by arbitration. FIDIC, Conditions of Contract for Electrical and Mechanical Works
(3d ed. 1987); Graham, The FIDIC Conditions of Contract for Electrical and Mechanical Works
(Including Erection on Site), 4 Int’l Constr. L. Rev. 283 (1987); Seppälä, International
Construction Contract Disputes: Commentary on ICC Awards Dealing with the FIDIC
International Conditions of Contract, 9(2) ICC Ct. Bull. 32 (1998).
294) Chatterjee, Settlement of Disputes Procedure and Arbitration Under FIDIC , 17(3) J. Int’l Arb.
103 (2000); FIDIC, Conditions of Contract for Construction (1999); FIDIC, Conditions of Contract
for EPC/Turnkey Projects (1999).
295) Chatterjee, Settlement of Disputes Procedure and Arbitration Under FIDIC , 17(3) J. Int’l Arb.
103, 108, 112 (2000) (if Dispute Adjudication Board’s decision is not accepted by parties,
matter must be settled by arbitration); Draetta, Dispute Resolution in International
Construction Linked Contracts, 2011 Int’l Bus. L.J. 69, 80; Nicklisch, The Role of the Engineer
as Contract Administrator and Quasi-Arbitrator in International Construction and Civil
Engineering Projects, 7 Int’l Constr. L. Rev. 322 (1990). See also §2.02[C][1][b]; §2.02[C][4];
Bühler, Technical Expertise: An Additional Means for Preventing or Settling Commercial
Disputes , 6(1) J. Int’l Arb. 135, 141-47 (1989); Chan, Construction Industry Adjudication: A
Comparative Study of International Practice , 22 J. Int’l Arb. 363, 369-71 (2005).
296) 2015 ICC Dispute Board Rules, Art. 4.
297) Id. at Art. 5.
298) Id. at Art. 6.
299) Id. at Art. 4(3).
300) Id. at Arts. 5(5), (6).
301) Id. at Art. 6(3).
302) Id. at Art. 1(2).
303) See, e.g., Judgement of 9 March 2021, State Road Agency of Ukraine - Ukravtodor v. Todini
Costruzioni Generali Spa , Case No. 18/21326 (Paris Cour d’Appel).
304) 2015 ICC Dispute Board Rules, Art. 8.
305) Id. at Arts. 18-25.
306) The name is derived from a form of dispute resolution used in fixing the salaries of
professional athletes in the United States. See Borris, Final Offer Arbitration from A Civil Law
Perspective, 24 J. Int’l Arb. 307 (2007); Gordon, Final Offer Arbitration in the New Era of Major
League Baseball, 6 J. Am. Arb. 153 (2007); Jarrosson, Les Frontières de l’Arbitrage , 2001 Rev.
Arb. 5, ¶38; Meth, Final Offer Arbitration: A Model for Dispute Resolution in Domestic and
International Disputes, 10 Am. Rev. Int’l Arb. 383 (1999); Mistelis, ADR in England and Wales,
12 Am. Rev. Int’l Arb. 167, 203 (1997) (baseball arbitration is form of alternate dispute
resolution rather than arbitration because third party assists parties in reaching
agreement but does not make own decisions); Mitrovic, L’Arbitrage Baseball: Arbitrage ou
Mode Alternatif de Règlement , 2003 Rev. Arb. 1167; Walz, Final-Offer-Arbitration: Oder –
Drittentscheidung Anhand Verbindlicher Angebote , 2003 SchiedsVZ 119; Welser & Stoffl, The
Arbitrator and the Arbitration Procedure, Calderbank Letters and Baseball Arbitration:
Effective Settlement Techniques?, 2016 Austrian Y.B. Int’l Arb. 87.
307) See Blackmand & McNeill, Alternative Dispute Resolution in Commercial Intellectual
Property Disputes, 47 Am. U. L. Rev. 1709, 1713 (1998).

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 308) See G. Born, International Arbitration and Forum Selection Agreements: Drafting and
Enforcing 123 (6th ed. 2021) (“The intention behind ‘high-low’ and ‘baseball’ arbitration
clauses is to provide a financial incentive for compromise and negotiation in the event of a
dispute”). See also Probst, Feller & Pless, Munich IP Dispute Resolution Forum: “The UPC
Mediation and Arbitration Centre” – Munich, 2 February 2016, 2016 GRUR Int. 766, 767 (2016)
(“Baseball Arbitration has two unique effects that render it especially effective in
determining disputed figures: because the tribunal has to choose one side’s figure, it
forces the parties to be reasonable when coming up with a possible number … This outlook,
combined with the fact that the parties will learn the other side’s figure whilst not being
able to change their own submittal, creates strong incentives to settle during the ensuing
negotiations prior to the tribunal’s decision”).
309) The ICDR and AAA have recently published rules for baseball arbitration. See 2015 ICDR
Final Offer Arbitration Supplementary Rules. See also Kirby, How Far Should An Arbitrator
Go to Get It Right?, in P. Shaughnessy & S. Tung (eds.), The Powers and Duties of An Arbitrator:
Liber Amicorum Pierre A. Karrer 193-200 (2017).
310) Some European commentators conclude that, properly drafted, baseball or final offer
“arbitration” is properly categorized as arbitration. Borris, Final Offer Arbitration from A
Civil Law Perspective , 24 J. Int’l Arb. 307, 312-14 (2007); Walz, Final-Offer-Arbitration: Oder –
Drittentscheidung Anhand Verbindlicher Angebote , 2003 SchiedsVZ 119.
311) See §1.05[A]; §2.02[C][1] & §2.02[C][4]; George Watts & Son, Inc. v. Tiffany & Co., 248 F.3d 577,
580-81 (7th Cir. 2001) (arbitrator cannot be deprived of authority to “reach compromise
outcomes that legal norms leave within the discretion of the parties to the arbitration
agreement”: is award “a kind of settlement businesses reach all the time, each receiving
part of what it wanted?”); Judgment of 9 October 1984, 1986 Rev. Arb. 267, 269-70 (French
Cour de Cassation Com.), Note, Mayer (the neutral’s decision “is not confined to
alternatives, laid out by the conflicting claims of the parties”).
312) Baseball arbitrations also raise questions with regard to the requirement, applicable
under many national arbitration statutes, for a reasoned award. See §23.03[B]. Where this
requirement is not waivable, baseball arbitration gives rise to significant enforceability
issues.
313) Kim, Rent-A-Judges and the Cost of Selling Justice, 44 Duke L.J. 166, 171 (1994) (“[T]he full
extent of a rent-a-judge’s powers are not clear, although numerous cases hold that private
judges have the power to conduct trials the same way public judges do”); Litkovitz,
Advantages of Using A Rent-A-Judge System in Ohio, 10 Ohio St. J. Disp. Resol. 491 (1994-
1995); M. McIlwrath & J. Savage, International Arbitration and Mediation: A Practical Guide
¶1-196 (2010).
314) See §2.02[C].
315) See §12.04[B][5].
316) 10 Delaware Code §349(a). Business disputes are eligible for Delaware Court of Chancery
arbitration if cumulative statutory eligibility criteria are satisfied: parties have consented
by agreement or stipulation (§347(a)(1)), at least one party is a business entity under
Delaware law (§347(a)(2)), at least one party is a business entity incorporated or has its
principal place of business in Delaware (§347(a)(3)), no party is a consumer under Delaware
law (§347(a)(4)), and the amount claimed is no less than $1 million should the dispute
involve solely monetary damages (§347(a)(5)).
317) See Del. Coalition for Open Gov’t v. Strine, 894 F.Supp.2d 493 (D. Del. 2012), aff’d, 733 F.3d 510,
522 (3d Cir.). In the words of a concurring opinion, “the proceedings set up by §349 [of the
Chancery Court Rules] violate[d] the First Amendment because they are conducted outside
the public view, not because of any problem otherwise inherent in a Judge-run arbitration
scheme. … Nothing in today’s decision should be construed to prevent sitting Judges of the
Court of Chancery from engaging in arbitrations without those confidentiality provisions.”
Del. Coalition for Open Gov’t, Inc., 733 F.3d at 522 (Fuentes, C.J., concurring).
318) See §2.02[C][1][b][iii].
319) As discussed elsewhere, national courts judges served as arbitrators historically (in state-
to-state arbitrations) and often serve as arbitrators in both investment and commercial
arbitrations. See §12.05.
320) See McGeough, Take Two: Delaware Tries Again on A New State-Facilitated Arbitration
Program, 33(8) Alternatives High Cost Litg. 122, 124 (2015).
321) See §19.08.
322) See §1.05[A]; §2.02[C][4]; §13.04[A][6].
323) Advanced Bodycare Solutions v. Thione, 524 F.3d 1235, 1239 (11th Cir. 2008).

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 324) As discussed above, arbitration was distinguished from strictly “legal” decision-making in
some historical periods and geographic settings. See §1.01[B][5]. In Medieval times, parties
in German-speaking regions could choose to participate in a court proceeding (nach Recht)
or a proceeding in equity (nach Guet), i.e., arbitration. The same process apparently served
as the primary dispute resolution mechanism for medieval merchants in France, Italy and
England. See §1.01[B][2].
325) See §19.03[B][6].
326) See §1.05; §2.02[C][1].
327) See §2.02[C][1][a].
328) See id.
329) See §1.01[A]-§1.01[B].
330) Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353, 369 (1978). See also
Jarrosson, Les Frontières de l’Arbitrage , 2001 Rev. Arb. 5, ¶¶21, 29; Molot, An Old Judicial
Role for A New Litigation Era, 113 Yale L.J. 27, 34-37, 43-46 (2003); Rogers, Regulating
International Arbitrators: A Functional Approach to Developing Standards of Conduct, 41
Stan. J. Int’l L. 53, 67-71, 84-90 (2005).
331) See §2.02[C][1][b]; §11.01; §15.04; §23.03; §27.01[B].
332) For discussions of these issues, see Franck, The Liability of International Arbitrators: A
Comparative Analysis and Proposal for Qualified Immunity, 20 N.Y.L. Sch. J. Int’l & Comp. L. 1,
23-24 (2000); Rutledge, Toward A Contractual Approach for Arbitral Immunity, 39 Ga. L. Rev.
151, 167-68 (2004).
333) Baker, Bill Analysis of A.B. 3030, California State Legislature (26 Aug. 2002).
334) See §2.02[C][1].
335) Rutledge, Toward A Contractual Approach for Arbitral Immunity, 39 Ga. L. Rev. 151, 168
(2004). The fact that parties agree to arbitrate is also no basis for questioning the
arbitrator’s judicial role – just as there would be no basis for suggesting that the parties’
agreement to a forum selection clause makes a national court a non-judicial body. See
§1.02[A].
336) See §1.05[B]; §2.02[C][1]; §13.04[A]. Equally, it would be very odd to conclude that
arbitrations with sole arbitrators, or multi-member tribunals appointed by appointing
authorities or national courts, are arbitrations, but arbitrations with party-nominated
arbitrators are not.
337) See §1.01[A][5]; §1.01[B][8]; §1.02[B][1] & §1.02[B][4]; §2.02[D]; §12.01[A]; §12.05[B].
338) Declining appointments advances the objectives of the adjudicative process, being to
assure a tribunal that is best-suited to resolve the parties’ dispute competently and
expeditiously. Indeed, the adjudicative function is not properly fulfilled by legal systems
which fail to provide mechanisms that enable parties and/or judges to avoid the risk of
arbitrary decisions resulting from judges deciding cases for which they are inexperienced
or ill-suited.
Similarly, dispute resolution mechanisms that provide for partial or dependent sole or
presiding arbitrators have been held not to constitute arbitration. See, e.g., Judgment of 4
November 2021, 2022 NJW 245, 246 (German Bundesgerichtshof); Judgment of 27 May 2004,
2004 NJW 2226 (German Bundesgerichtshof) (dispute resolution under company’s articles of
association not arbitration because decision-maker not impartial); Judgment of 2 February
2017, 2017 SchiedsVZ 150, 153 (Oberlandesgericht Frankfurt am Main) (dispute resolution
mechanism providing that party-appointed arbitrators would be disputing parties’ CEOs);
Desbois v. Indus. A.C. Davie Inc., [1990] CanLII 3619 (Québec Ct. App.) (clause providing for
party to act as arbitrator nullified because impartiality of tribunal is fundamental feature
of arbitration).
339) Franck, The Liability of International Arbitrators: A Comparative Analysis and Proposal for
Qualified Immunity, 20 N.Y.L. Sch. J. Int’l & Comp. L. 1, 23 (2000).
340) Id. at 24.
341) See §2.02[C][2][b]; §15.07[D][2].
342) Rutledge, Toward A Contractual Approach for Arbitral Immunity, 39 Ga. L. Rev. 151, 167
(2004).
343) See §27.04[A]-§27.04[B] & §27.04[D].
344) Rutledge, Toward A Contractual Approach for Arbitral Immunity, 39 Ga. L. Rev. 151, 167
(2004).
345) See §15.08[Z][15].
346) Franck, The Liability of International Arbitrators: A Comparative Analysis and Proposal for
Qualified Immunity, 20 N.Y.L. Sch. J. Int’l & Comp. L. 1, 24 (2000).
347) See Chapter 20 (especially §20.03[D][2]).
348) See §1.05; §2.02[C][1] (especially §2.02[C][1][b][v]); §15.04; §25.04[B]; §26.05[C][3].

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 349) See §2.02[C][1][b][iv]; §25.03.
350) See §25.04, discussing denials of opportunities to be heard, improper selection of arbitral
tribunal, violations of public policy and disregard of law.
351) Baar v. Tigerman, 189 Cal.Rptr. 834, 838 (Cal. Ct. App. 1983).
352) Born, Arbitration and the Freedom to Associate, 38 Ga. J. Int’l & Comp. L. 7 (2009).
353) There are also instances where persons denominated as “arbitrators” perform functions
that in fact do not constitute “arbitration” and that do not involve (or involve only
incidentally) a judicial function. As discussed above, that is the case with certain types of
valuations or expert determinations, which do not involve hearing the parties or making a
decision based upon an evidentiary record and legal (or other) submissions. See §2.02[C][2]
[b]. Needless to say, persons entrusted with such tasks will not qualify as arbitrators (even
if that is what they are called) and will not enjoy arbitrator immunity. Of course, they may
enjoy other protections or immunities, depending on applicable law.
354) See §12.05[B].
355) See id.
356) See §12.05[B][6]; §13.04[A][1]. As discussed below, these differences are rightly relevant to
the existence and scope of arbitral immunities that are accorded to individuals fulfilling
such roles.
357) See §13.04[A][2]; de Rosal Carmona, Lack of Impartiality or Independence as Grounds to Deny
Enforcement Under the New York Convention, in K. Fach Gomez & A. Lopez-Rodriguez (eds.),
60 Years of the New York Convention: Key Issues and Future Challenges 150 (2019) (“[T]he
general consensus is that, absent specific agreement of the parties, all arbitrators should
be subject to the same standard of impartiality and independence”).
358) See §12.05[B] (especially §12.05[B][6]).
359) Compare Rogers, Regulating International Arbitrators: A Functional Approach to Developing
Standards of Conduct, 41 Stan. J. Int’l L. 53, 113-17 (2005).
360) See §1.01[A][5]; §12.05[B][6].
361) See §12.05[B][6]. Experienced practitioners are almost unanimous in confirming that a co-
arbitrator’s departure from principles of impartiality during the arbitral process is seldom
of benefit to “his” party. See, e.g., Lowenfeld, The Party-Appointed Arbitrator in International
Controversies: Some Reflections, 30 Tex. Int’l L.J. 59, 60-61 (1995) (recounting instances where
overly zealous co-arbitrator “lost credibility with the chairman”); S. Schwebel, Justice in
International Law: Further Selected Writings 7 (2011) (“the partisan party-appointed
arbitrator usually loses influence in proportion to his partisanship”).
362) See §25.04[E].
363) See, e.g., Carbonneau, The Exercise of Contract Freedom in the Making of Arbitration
Agreements, 36 Vand. J. Transnat’l L. 1189, 1211-12 (2003).
364) Experienced practitioners will also confirm that the selection of individual judges to hear a
particular case will influence the outcome enormously (depending on that judge’s
background, judicial philosophy and other facts). The parties’ efforts to overcome the
random and arbitrary character of national court litigation does not suggest that the
resulting process is less judicial; rather, it reflects an effort to obtain a better and fairer
adjudicative process than provided by national courts.
365) See §15.08[GG]; §23.03.
366) In any event, it is unclear whether evidence of “baby-splitting” would be inconsistent with
a judicial function. Solomon was presumably acting in a judicial capacity when rendering
his historic judgment. The Bible, 1 Kings 3:25.
367) Keer & Naimark, Arbitrators Do Not “Split the Baby”: Empirical Evidence from International
Business Arbitration, 18 J. Int’l Arb. 573, 578 (2001) (in study of international arbitral awards,
31% of claimants received nothing, 35% received 100% claimed, and remaining 34%
received widely varying percentages of amounts claimed; “the results from this study show
emphatically that arbitrators do not engage in the practice of ‘splitting the baby’”);
Mentschikoff, Commercial Arbitration, 61 Colum. L. Rev. 846 (1961) (50% of U.S. domestic
commercial arbitral awards studied granted all or nothing; “many of the partial awards are
arrived at in a judicial manner since they result from the striking of particular items of
damages that the arbitrators believe are not justified under the facts or law of the
particular case”).
368) See §2.02[C][2][b].
369) See §2.02[C][2][c].
370) See §2.02[C][2][h] (baseball “arbitration”).
371) See §15.04; §25.04[B]; §26.05[C][3].

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 372) See §12.05; UNCITRAL Code of Conduct for Arbitrtors in International Investment Dispute
Resolution Arts. 3(1), 4 (October 2023).
373) See §2.02[C][1][a].
374) See §2.02[A]. The same conclusion applies under Article 1 of the Inter-American Convention.
375) See §2.02[B].
376) See §2.02[C][1].
377) See §2.02[C][4].
378) See §2.02[C][2][b].
379) See §2.02[C][4]. See also E. Gaillard & J. Savage (eds.), Fouchard Gaillard Goldman on
International Commercial Arbitration ¶¶12-13 (1999); Laine, De l’Exécution en France des
Sentences Arbitrales Étrangères, 26 J.D.I. (Clunet) 641, 653-54 (1899) (“What is the task given
to the arbitrators? It is to appraise the merits of the respective claims of the parties … and
that done, to make a decision …, that is to say … judge”); A. Samuel, Jurisdictional Problems
in International Commercial Arbitration 45 (1989) (“The duty of the arbitrator to evaluate the
arguments put forward by the parties and make a binding decision on the merits of the
dispute is … fundamental to the nature of arbitration”).
380) See §1.02[B][6]; §11.03[C]; §15.01-§15.02.
381) See §1.01[B][9]; §1.02[B][6]; §15.01; §15.03.
382) Compare the approach of some U.S. courts in this regard, effectively applying the FAA by
analogy to various forms of dispute resolution agreements. See §2.02[C][2][b]-§2.02[C][2][c].
383) See §1.02[B][6]; §11.03[C]; §15.01-§15.02; §19.04[A].
384) As noted previously, some U.S. judicial decisions have either expressly or impliedly
adopted this position. See §2.02[C][2][b].
385) See Part III; Chapter 21.
386) There is greater scope for application of principles of unconscionability or mistake where
unsophisticated parties are alleged to have agreed to a dispute resolution process not
affording judicial or quasi-judicial procedural protections. See §5.06[D][2] & §5.06[D][4].
387) If this analysis was to be accepted, it could amount in some contexts to a “contracting into”
arbitration legislation, even where no “agreement to arbitrate” existed. Naturally, if
specific public policy concerns were raised in particular cases, such an agreement could
not be given effect. See Stipanowich, Contract and Conflict Management, 2001 Wis. L. Rev.
831, 862 (“[U]sing laws governing binding arbitration to enforce other kinds of dispute
resolution agreements is not wholly unsupportable. Modern arbitration statutes are
founded on the proposition that private arrangement for final and binding resolution of
disputes are a good thing, not only because they relieve courts of commensurate burden,
but because they afford parties considerable latitude in structuring mechanisms for
resolving conflict in their own way, according to their own timetable and their own
particular needs. These broad principles are applicable not only to binding arbitration,
but also to mediation and other ADR processes that hold the promise of an out-of-court
resolution in a setting defined by private agreement”).
388) See French Code of Civil Procedure, Art. 1450(1) (“Only a natural person having full capacity
to exercise his or her rights may act as an arbitrator”); Netherlands Code of Civil Procedure,
Art. 1023 (“Any natural person of legal capacity may be appointed as arbitrator”);
Portuguese Law on Voluntary Arbitration, Art. 9; Scottish Arbitration Act, 2010, Schedule 1,
Rule 3 (“An arbitrator must be a natural person”); Spanish Arbitration Act, Art. 13 (“All
natural persons in full possession of their civil rights may act as arbitrators, provided that
they are not restricted by the legislation applicable to them in the exercise of their
profession”); Angola Law on Voluntary Arbitration, Art. 8; Mozambique Law on Voluntary
Arbitration, Art. 19(a); Peruvian Arbitration Law, Art. 20 (“Any individual with full capacity to
exercise his civil rights … may act as an arbitrator”) Brazilian Arbitration Law, Art. 13 (“Any
person capable and trusted by the parties may be an arbitrator”). See also Alexeev &
Girard, National Report for Canada (2018 through 2022) , in L. Bosman (ed.), International
Handbook on Commercial Arbitration 1, 20 (2020 & Update October 2022); D. Girsberger & N.
Voser, International Arbitration: Comparative and Swiss Perspectives ¶693 (4th ed. 2021);
Kreis & Kaulartz, Smart Contracts and Dispute Resolution: A Chance to Raise Efficiency , 2019
ASA Bull. 336, 352-53 (2019); Voit, in H.-J. Musielak & W. Voit (eds.), Kommentar zur
Zivilprozessordnung §1035, ¶16 (20th ed. 2023); §12.04[B][1].
389) A review of publicly-available international arbitral awards reveals virtually no instances
where legal persons served as arbitrators.
390) See §12.04[B][1]; Greek Code of Civil Procedure, Book VII, Art. 871 (as amended by Law
4842/2021) (“One or several persons as well as a court in its entirety may be appointed as
arbitrators. If the arbitration agreement appoints a legal person as arbitrator, its powers
are limited to organizing the arbitration”).

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 391) See §2.01[A][1]. The Convention’s uniform definition of arbitration imposes no requirement
that arbitration occur before a natural person and Contracting States that introduce such a
requirement arguably violate their obligations under Article II to recognize agreements to
arbitrate.
392) See, e.g., Bento, International Arbitration and Artificial Intelligence: Time to Tango?, Kluwer
Arb. Blog (23 Feb. 2018); Hope, Can A Robot Be An Arbitrator?, 2019 Stock. Arb. Y.B. 103; Ng &
del Rio, When the Tribunal Is An Algorithm: Complexities of Enforcing Orders Determined by A
Software Under the New York Convention, in K. Fach Gomez & A. Lopez-Rodriguez (eds.), 60
Years of the New York Convention: Key Issues and Future Challenges 121 (2019); Scherer,
Artificial Intelligence and Legal Decision-Making: The Wide Open, 36 J. Int’l Arb. 539 (2019).
393) See §12.04[B][1].
394) See §12.05; UNCITRAL Draft Code of Conduct for Arbitrators in International Investment
Dispute Resolution Arts. 3(1), 4 (October 2023).
395) See §15.04[B][3].
396) See §2.01[B].
397) See §5.02[A]; A. Samuel, Jurisdictional Problems in International Commercial Arbitration 75-
96 (1989).
398) See §5.02[A].
399) See §5.02[A] (especially §5.02[A][2]).
400) New York Convention, Art. II(1); UNCITRAL Model Law, Art. 7(1); French Code of Civil
Procedure, Art. 1442(2); German ZPO, §1029(1); Swedish Arbitration Act, §1; Italian Code of
Civil Procedure, Arts. 808-808 bis; Portuguese Law on Voluntary Arbitration, Art. 1(3);
Chilean Arbitration Law, Art. 7(1); Peruvian Arbitration Law, Art. 13(1); Brazilian Arbitration
Law, Art. 4. See also Managing Co. (Utopia) v. Buyer (Germany), Final Award in SCC Case No.
2020/b of 20 November 2020, XLVI Y.B. Comm. Arb. 147, 150 (2021) (foundation of arbitration
is parties’ agreement to arbitrate a defined legal relationship).
401) French Code of Civil Procedure, Art. 1442(2) (“An arbitration clause is an agreement by
which the parties to one or more contracts undertake to submit to arbitration disputes
which may arise in relation to such contract(s)”) (emphasis added); D. Girsberger & N. Voser,
International Arbitration: Comparative and Swiss Perspectives ¶395 (4th ed. 2021) (“If the
parties intend for several legal relationships to be submitted to arbitration at the same
time, these must be individually specified in order to comply with the prerequisite of
specification. A general reference to ‘all legal disputes which might arise out of the current
or future business relationship between the parties’ without any further specific details on
the legal relationships is generally considered to be insufficient”); Wenger, in S. Berti et al.
(eds.), International Arbitration in Switzerland Art. 178, ¶32 (2000) (“[G]lobal reference to ‘all
legal disputes which might arise from the current or future business relationship between
the parties’ without any further particulars is not sufficient”).
402) Swiss Cantonal Concordat, Art. 4 (emphasis added) (repealed). See also Geneva Protocol,
Art. 1 (“An agreement whether relating to existing or future differences between parties …
by which the parties to a contract agree to submit to arbitration all or any differences that
may arise in connection with such contract”) (emphasis added).
403) W. Craig, W. Park & J. Paulsson, International Chamber of Commerce Arbitration ¶6.02 (3d ed.
2000). See also J.-F. Poudret & S. Besson, Comparative Law of International Arbitration 121
(2d ed. 2007) (“The definition makes it clear that the disputes submitted to arbitration
must result from a defined legal relationship, whether contractual or not. The parties
cannot, without waiving their freedom, undertake to submit to arbitration any dispute
which might arise between them in the future”).
404) See §5.04[D][1]; §9.02[E][8].
405) See, e.g., Bechtel Do Brasil Construções Ltda v. UEG Araucária Ltda, 638 F.3d 150 (2d Cir. 2011)
(enforcing broad arbitration clause); Louis Dreyfus Negoce SA v. Blystad Shipping & Trading
Inc., 252 F.3d 218, 225-27 (2d Cir. 2001) (same); PaineWebber, Inc. v. Bybyk, 81 F.3d 1193, 1200
(2d Cir. 1996) (“broad” arbitration clause upheld); AGCS Marine Ins. Co. v. Hymel & Assoc.,
LLC, 2017 WL 2729093 (S.D.N.Y.) (enforcing broad arbitration clause); Kelso Enters. Ltd v. MV
Diadema, 2009 WL 1788110, at *4 (S.D.N.Y.) (enforcing broad arbitration clause); ACE Capital
Ltd v. CMS Energy Corp. [2008] EWHC 1843 (Comm) (English High Ct.); Cheshire Contractors
Pty Ltd v. Civil Mining & Constr. Pty Ltd [2021] QSC 75 (Queensland S.Ct.) (rejecting argument
that arbitration agreement covering “disputes or differences arising between the parties”
failed to refer to a defined legal relationship).

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 406) Compare R. David, Arbitration in International Trade 184 (1985); A. Samuel, Jurisdictional
Problems in International Commercial Arbitration 151-52 (1989) (“[P]resumably means that
an agreement to submit to arbitration any dispute arising between the parties in the
future which does not contain any link between the issues that might be arbitrated under it
and any alleged contract or other legal relationship between the parties formed in the
past, present and probably the immediate future, would be unenforceable”). See also
Bidois v. Leef, [2015] NZCA 176, ¶49 (Wellington Ct. App.) (“Despite the fact that this
requirement of a ‘defined legal relationship’ appears in many international arbitration
provisions, it has been noted that there are virtually no reported cases in which an
arbitration agreement has been held to be invalid for failure to meet this requirement”).
407) Roose Indus. Ltd v. Ready Mixed Concrete Ltd, [1974] 2 NZLR 246, 247 (Wellington Ct. App.).
408) Id. at 248-49. The Court also observed that it “should restrict the operation of such a wide
clause no further than necessary.” The Court’s analysis arguably rested on issues of
interpretation, rather than validity, with the Court possibly reasoning that the parties
could not have intended to agree to an arbitration clause with unlimited scope. See also
Pryles, Drafting Arbitration Agreements , 15 Adelaide L. Rev. 5, 8 (1993) (“[I]t would seem that
a clause such as that in Roose Industries would not constitute an arbitration agreement
within the New York Convention or the Model Law”).
409) See §2.03[A].
410) See §5.06[C].
411) See §6.01.
412) Of course, generally-applicable nonarbitrability exceptions would apply to particular
disputes or claims. See §6.04.
413) The text of the pledge, the Corporate Policy Statement on Alternatives to Litigation, is as
follows: “In the event of a business dispute between our company and another company
which has made or will then make a similar statement, we are prepared to explore with
that other party resolution of the dispute through negotiation or ADR techniques before
pursuing full-scale litigation. If either party believes that the dispute is not suitable for
ADR techniques, or if such techniques do not produce results satisfactory to the disputants,
either party may proceed with litigation.” CPR, Corporate Policy Statement on Alternatives
to Litigation 1 (1984). See also CPR, 21st Century Pledge 1 (2012) (“Our company pledges to
commit its resources to manage and resolve disputes through … ADR processes”).
414) See, e.g., Fiss, Against Settlement, 93 Yale L.J. 1073, 1085 (1984).
415) See §6.04.
416) Historically, guild and other trade association rules often had arbitration provisions
comparable to the example outlined in text above. See §1.01[B][2] & §1.01[B][5].
417) As discussed below, it may be appropriate as a matter of contract interpretation to imply
limits on arbitration clauses that are, by their terms, unrestricted. See §2.03[A]; §5.04[D][1]
[c]; §9.02[F][1]. Parties should generally be free to agree to unrestricted arbitration
agreements, but it is ordinarily unlikely that they would do so. The more likely intention,
absent contrary indication, is that parties intend to arbitrate all disputes relating directly
or indirectly to their transaction, but not wholly unrelated disputes. See also §9.02[F][1].
418) New York Convention, Art. I(3); European Convention, Art. I(a); Inter-American Convention,
Art. 1; UNCITRAL Model Law, Art. 1(1); U.S. FAA, 9 U.S.C. §1; Canadian Commercial Arbitration
Act, Art. 1; Costa Rican Arbitration Law, Art. 1(1); Venezuelan Arbitration Law, Art. 1.
419) It is comparatively unusual to encounter international arbitration agreements dealing with
non-commercial matters (save for the sui generis subject of state-to-state disputes). Areas
where it is conceivable that the “commercial” requirement would arguably not be satisfied
include domestic relations, criminal law, some administrative law issues, some inheritance
issues and some religious issues. Most such issues have historically been dealt with through
nonarbitrability exceptions. See §6.04.
420) Geneva Protocol, Art. 1 (emphasis added). See §1.01[C][1]. The Geneva Convention
incorporated this limitation. Geneva Convention, Art. 1; §1.01[C][2].
421) This language paralleled that later adopted in Article I(3) of the New York Convention. See
§2.03[B][1][b].
422) For a discussion of the nonarbitrability doctrine, including limitations of arbitrable
matters in some states to commercial matters, see §6.01; §6.04.

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 423) U.S. FAA, 9 U.S.C. §2 (“any maritime transaction or a contract evidencing a transaction
involving commerce”); E. Gaillard & J. Savage (eds.), Fouchard Gaillard Goldman on
International Commercial Arbitration ¶¶64-65 (1999) (“Historically, French domestic law
was noted for its hostility towards the arbitration of non-commercial disputes. This
hostility resulted, in particular, in a prohibition on arbitration clauses for disputes other
than those within the jurisdiction of the commercial courts”); Jarrosson, La Clause
Compromissoire (Art. 2061 C. Civ.) , 1992 Rev. Arb. 259.In England, nonarbitrability issues
appear to have been historically unimportant (with church, family and criminal matters
being arbitrated). Roebuck, Sources for the History of Arbitration: A Bibliographical
Introduction 14 Arb. Int’l 237, 257-65 (1998).
424) See §1.01[B][5]. It also reflected the general limitation of private international law
conventions to “civil” and “commercial” matters. G. Born & P. Rutledge, International Civil
Litigation in United States Courts 1353 et seq. (7th ed. 2023).
425) See §1.04[B][1][a]; §1.04[B][1][e][ii]; §2.03[B][2].
426) New York Convention, Art. I(3) (“When signing, ratifying or acceding to this Convention, or
notifying extension under article X hereof, any State may … declare that it will apply the
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”) (emphasis added). See A. van den Berg, The New York Arbitration Convention of
1958 51-54 (1981).
427) See U.N. Economic and Social Council, Summary Record of the Twenty-Third Meeting of the
United Nations Conference on International Commercial Arbitration, U.N. Doc.
E/CONF.26/SR.23 (1958); Message from the President on the Convention on the Recognition
and Enforcement of Foreign Arbitral Awards, S. Exec. Doc. E, 90th Cong., 2d Sess. 18 (1968)
(“commercial matters reservation was included to remove a barrier to accession by
nations having separate civil and commercial codes which allow arbitration only of
matters falling within the latter”).
428) See §6.02[A]-§6.02[C]. See also Zhongshan Fucheng Indus. Inv. Co. v. Nigeria, 2023 WL 417975,
at *16-7 (D.D.C.) (“[The commercial limitation] excludes arbitrations and awards arising out
of matrimonial or custody disputes, disputes concerning succession to property, and labor
disputes”); Island Territory of Curacao v. Solitron Devices, Inc., 356 F.Supp. 1, 13 (S.D.N.Y.
1973) (there is “nothing to show what the purpose of the ‘commercial’ limitation was”; “[w]e
may logically speculate that it was to exclude matrimonial and other domestic relations
awards, political awards, and the like”), aff’d, 489 F.2d 1313 (2d Cir. 1973).
429) Approximately one-third of the states ratifying the Convention have deposited a
commercial reservation (including, among others, the United States, China, Hong Kong,
Korea, Greece, Philippines, Canada (although the commercial reservation does not apply
to Québec), Argentina, Venezuela, Turkey, Barbados and Ecuador). See UNCITRAL, Status:
1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, available at
www.uncitral.org.
430) See U.S. FAA, 9 U.S.C. §201. This is codified in §202 of the FAA, which provides, among other
things, that “[a]n arbitration agreement … arising out of a legal relationship, whether
contractual or not, which is considered as commercial … falls under the Convention.” U.S.
FAA, 9 U.S.C. §202 (emphasis added). Section 202 also provides that “commercial” relations
include those which fall within the very expansive definition contained in §2 of the
domestic FAA of arbitration agreements affecting interstate and foreign commerce. See
§2.03[B][1][b][i]; §2.03[B][2][b]. The purpose of this provision was to make clear that the
Convention was applicable to agreements even if they were also subject to the first
chapter of the FAA. As discussed below, however, §202 excludes agreements and awards
between U.S. nationals having no reasonable relationship to the United States. See §2.03[C]
[2][b].
431) For one circular definition, see Restatement of the U.S. Law of International Commercial and
Investor-State Arbitration §1.1(e) (2023) (“‘Commercial’ matters or relationships are those
matters or relationships, whether contractual or not, that affect commerce”).
432) See Bautista v. Star Cruises, 396 F.3d 1289, 1300 (11th Cir. 2005) (arbitration clause contained
in cruise line crewmembers’ employment contracts is subject to Convention and FAA
because contracts constitute commercial relationships); Francisco v. Stolt Achievement MT,
293 F.3d 270 (5th Cir. 2002) (seamen employment contracts fall within scope of U.S.
legislation implementing New York Convention: “an employment contract is commercial”);
Générale de Surveillance v. Raytheon Euro. Mgt & Sys. Co., 643 F.2d 863 (1st Cir. 1981);
Guatemala v. IC Power Asia Dev. Ltd, 619 F.Supp.3d 421 (S.D.N.Y. 2022) (purchase of two
Guatemalan companies in energy distribution market constitutes commercial legal
relationship); VVG Real Estate Invs. v. Underwriters of Lloyd’s, London, 317 F.Supp.3d 1199
(S.D. Fla. 2018) (sale of insurance constitutes commercial dispute).

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 433) Bautista v. Star Cruises, 396 F.3d 1289, 1300 (11th Cir. 2005); Francisco, 293 F.3d 274 (“[D]oubts
as to whether a contract falls under the Convention Act should be resolved in favor of
arbitration”); Sumitomo Corp. v. Parakopi Compania Maritima, 477 F.Supp. 737, 740 (S.D.N.Y.
1979), aff’d, 620 F.2d 286 (2d Cir. 1980).
434) Siderius, Inc. v. Compania de Acero del Pacifico, SA, 453 F.Supp. 22, 24 (S.D.N.Y. 1978).
435) Bautista, 396 F.3d 1289; Francisco, 293 F.3d 270 (rejecting argument that seaman’s contract
is not commercial within meaning of New York Convention); Sumitomo, 620 F.2d 286; S.
Glazer’s Wine & Spirits, LLC v. Denyer, 2017 WL 6417810 (D. Haw.); Prograph Int’l Inc. v.
Barhydt, 928 F.Supp. 983 (N.D. Cal. 1996) (employment dispute is “commercial” within
meaning of New York Convention); Siderius, 453 F.Supp. 22; Antco Shipping Co. v. Sidermar
SpA, 417 F.Supp. 207 (S.D.N.Y. 1976); Star-Kist Foods, Inc. v. Diakan Hope, SA, 423 F.Supp. 1220
(C.D. Cal. 1976); Weight Watchers of Quebec v. Weight Watchers Int’l, 398 F.Supp. 1057
(E.D.N.Y. 1975).
436) Compare Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 449 (U.S. S.Ct. 2006)
(consumer transaction subject to domestic FAA); Allied-Bruce Terminix Cos. v. Dobson, 513
U.S. 265 (U.S. S.Ct. 1995); §3.02[B][3][c].
437) Maletis v. Perkins & Co., PC, 2005 WL 3021254, at *4 (D. Or.) (relationship between customer
and bank is commercial within meaning of New York Convention); Galtney v. KPMG LLP, 2005
WL 1214613, at *3 (S.D. Tex.) (same); Henry v. Murphy, 2002 WL 24307, at *4 (S.D.N.Y.) (conflict
between corporate shareholders is commercial).
438) See, e.g., Island Territory of Curacao v. Solitron Devices, Inc., 356 F.Supp. 1 (S.D.N.Y.), aff’d,
489 F.2d 1313 (2d Cir. 1973).
439) See, e.g., Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (U.S. S.Ct.
1985) (antitrust laws); Scherk, v. Alberto-Culver Co., 417 U.S. 506 (U.S. S.Ct. 1974) (securities
laws). See §6.03[C][4].
440) See, e.g., Corcoran v. Ardra Ins. Co., 566 N.Y.S.2d 575 (N.Y. 1990).
441) See, e.g., Indus. Risk Insurers v. MAN Gutehoffnungshütte GmbH, 141 F.3d 1434 (11th Cir. 1998);
Sedco, Inc. v. Petroleos Mexicanos Mexican Nat’l Oil Co., 767 F.2d 1140, 1145 (5th Cir. 1985);
VVG Real Estate Invs. v. Underwriters at Lloyd’s, London, 317 F.Supp.3d 1199, 1206 (S.D. Fla.
2018) (Florida marine shipping company’s contract with Bermuda-based insurer governed
by Convention because McCarran-Ferguson Act does not apply to international insurance
contracts); Murphy Oil USA, Inc. v. SR Int’l Bus. Ins. Co., 2007 WL 2752366, at *4 (W.D. Ark.)
(“[I]nsurance policies arose out of and involve a commercial relationship”); Meadows
Indem. Co. v. Baccala & Shoop Ins. Servs., Inc., 760 F.Supp. 1036 (E.D.N.Y. 1991).
442) See, e.g., Escobar v. Celebration Cruise Operator, Inc., 2014 WL 11380939, at *3 (S.D. Fla.)
(“Since §2 [of the FAA] contains no seamen’s exemption, the Eleventh Circuit has held, the
exemption of seamen’s contracts from the FAA as set forth in §1 does not apply to contracts
requiring arbitration that fall within the Convention”); Antco Shipping Co. v. Sidermar SpA,
417 F.Supp. 207 (S.D.N.Y. 1976) (maritime contract of affreightment).
443) Faberge Int’l Inc. v. Di Pino, 491 N.Y.S.2d 345, 348 (N.Y. App. Div. 1985).
444) See §2.03[B][2][b].
445) U.S. FAA, 9 U.S.C. §1 (“[N]othing herein contained shall apply to contracts of employment of
seamen, railway employees or any other class of workers engaged in foreign or interstate
commerce”). See also Southwest Airlines Co. v. Saxon, 142 S.Ct. 1783, 1789 (U.S. S.Ct. 2022)
(“[A]ny class of workers directly involved in transporting goods across state or international
borders falls within §1’s exemption”); Bissonnette v. LePage Bakeries Park Street, LLC, 2022
WL 4457998, at *11 (2d Cir.) (§1’s exemption only applies to “workers in the transportation
industry” and “an individual works in a transportation industry if the industry in which the
individual works pegs its charges chiefly to the movement of goods or passengers, and the
industry's predominant source of commercial revenue is generated by that movement”).

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 446) See, e.g., Suazo v. NCL (Bahamas), Ltd, 822 F.3d 543 (11th Cir. 2016); Aggarao v. MOL Ship Mgt
Co., Ltd, 675 F.3d 355 (4th Cir. 2012) (exemption of seamen’s contracts under §1 of FAA does
not render New York Convention inapplicable to arbitration agreements in such contracts);
Balen v. Holland Am. Line Inc., 583 F.3d 647 (9th Cir. 2009) (provision of FAA exempting
“contracts of employment of seamen” from domestic FAA does not apply to arbitration
agreements governed by New York Convention); Razo v. Nordic Empress Shipping Ltd, 362
F.App’x 243, 245 (3d Cir. 2009) (“[T]he District Court was correct in concluding that contracts
of employment for seaman are not excluded from the term ‘commercial’ in the Convention
Act”); Bautista, 396 F.3d 1289; Francisco, 293 F.3d 270; Llaglas v. Sealift Holdings Inc., 2018 WL
5305366 (W.D. La.); Castro v. Tri Marine Fish Co., 2017 WL 11404381 (W.D. Wash.); Johnson v.
Norwegian Cruise Line (Bahamas) Ltd, 163 F.Supp.3d 338 (E.D. La. 2016); Tancu v. Celebrity
Cruises, Inc., 2010 WL 271432, at *2 (S.D. Fla.); Cardoso v. Carnival Corp., 2010 WL 996528, at *5
(S.D. Fla.).
447) Francisco, 293 F.3d at 274.
448) Mitsubishi Motors Corp., 473 U.S. 614; Francisco, 293 F.3d at 274-75 (citing Scherk v. Alberto-
Culver Co., 417 U.S. 506, 516-20 (U.S. S.Ct. 1974)). This parallels the analysis of the
nonarbitrability doctrine in international cases by U.S. courts. See §6.03[A]; §6.04[A][1];
§6.04[B][1].
449) Despite this, many jurisdictions would nonetheless consider categories of contracts such as
employment and consumer agreements as involving nonarbitrable matters. See
§6.04[G]-§6.04[H]. This is typically not achieved through means of the “commercial”
exception, but rather through validity or nonarbitrability rules. Compare Matthews &
Stewart, Online Arbitration of Cross-Border, Business to Consumer Disputes, 56 U. Miami L.
Rev. 1111, 1136 (2002).
450) See Judgment of 2 November 1983, XIV Y.B. Comm. Arb. 629 (Oberlandesgericht Hamm)
(1989); Canada Packers Inc. v. Terra Nova Tankers Inc. , XXII Y.B. Comm. Arb. 669 (Ontario
Super. Ct. 1992) (1997) (tort claims encompassed by Article I(3)’s “commercial” reference);
RM Inv. & Trading Co. Pvt Ltd (India) v. Boeing Co., 1994 AIR 1136 (Indian S.Ct.) (consultancy
contract is “commercial”); Judgment of 5 November 1981, European Grain & Shipping Ltd v.
Bombay Extractions Pvt Ltd , VIII Y.B. Comm. Arb. 371, 375 (Bombay High Ct.) (1983) (“We have
no doubt that the contract in the instant case, which was for the sale and purchase of a
commodity, was clearly a contract which brought about legal relationship which was
commercial in nature under the Indian law”); Judgment of 20 February 1975, Carters
(Merchants) Ltd v. Ferraro , IV Y.B. Comm. Arb. 275 (Naples Corte di Appello) (1979) (sale
contract is commercial); ); Judgment of 23 May 2019, Mantenimientos y Servicios Integrales,
SA de CV, Case No. 62/2019 (Mexican Tribunal Colegiado de Circuito).
451) See Judgment of 20 February 1975, Carters (Merchants) Ltd v. Ferraro , IV Y.B. Comm. Arb. 275
(Naples Corte di Appello) (1979).
452) See G. Born & P. Rutledge, International Civil Litigation in United States Courts 299-314, 982-
88 (7th ed. 2023).
453) For example, disputes over the terms “civil or commercial” have arisen under the Hague
Service Convention and the Hague Evidence Convention. See G. Born & P. Rutledge,
International Civil Litigation in United States Courts 1070-71, 1200-01 (7th ed. 2023).
454) Many international “concession agreements” between developing states and multinational
companies contain arbitration clauses. These concession agreements typically involve the
development of the developing nation’s natural resources, a subject over which some
national courts have been reluctant to exercise jurisdiction, invoking the foreign sovereign
immunity, act of state and related doctrines. See G. Born & P. Rutledge, International Civil
Litigation in United States Courts 278-80, 897-98 (7th ed. 2023). Nonetheless, the drafters of
arbitral clauses in typical concession agreements clearly intend that these clauses, and
any subsequent arbitral awards, would fall within the Convention’s “commercial” scope.
The effective enforcement of such provisions, in order to provide a neutral, expert dispute
resolution mechanism, falls squarely within the fundamental objectives of leading
international arbitration conventions and national arbitration legislation. See §1.02[B].
455) See, e.g., Matthews & Stewart, Online Arbitration of Cross-Border Business to Consumer
Disputes, 56 U. Miami L. Rev. 1111, 1136 (2002) (“[C]ommercial reservation represents the
general international antipathy towards consumer arbitration”); Rome & Shaiken,
Arbitration Carve-Out Clauses in Commercial and Consumer Secured Loan Transactions, 61
Disp. Resol. J. 42 (2006). See also §6.04[H].
456) See, e.g., Borowski v. Heinrich Fiedler Perforiertechnik GmbH, (1994) 158 AR 213 (Alberta Q.B.);
Rogers, The Arrival of the “Have-Nots” in International Arbitration, 8 Nev. L.J. 341 (2007). See
also §6.04[G].

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 457) For an unusual example, see BV Bureau Wijsmuller v. U.S., 606 F.Supp. 1510 (S.D.N.Y. 1976)
(claims for salvage of U.S. military vessel not commercial; court denied motion to compel
arbitration on basis that “[w]hatever uncertainties may arise when agencies of government
engage in commercial transactions, relations arising out of the activities of warships have
never been regarded as ‘commercial’ within the context of sovereign immunity”). The
decision also relied on U.S. statutory restrictions on the capacity of the U.S. Government to
enter into arbitration agreements.
458) See, e.g., RM Inv. & Trading Co. Pvt Ltd (India) v. Boeing Co., 1994 AIR 1136 (Indian S.Ct.); India
Organic Chems., Ltd v. Chemtex Fibres Inc., 81 BOMLR 49 (Bombay High Ct. 1979). These
decisions should not survive India’s adoption of the UNCITRAL Model Law in 1996. See
§1.04[B][1][a].
459) Judgment of 10 November 1993, Taieb Haddad & Hans Barett v. d’Investissement Kal , XXIII
Y.B. Comm. Arb. 770 (Tunisian Cour de Cassation) (1998).
460) See New York Convention, Art. I(3) (“considered as commercial under the national law of the
State making [the] declaration”); §2.03[B][1][b].
461) See §4.05[A]; §6.01.
462) This interpretation would in theory permit a Contracting State to define all but particular
types of contractual relationships (e.g., sale of goods between merchants) as non-
commercial. The consequence would be to exclude other types of agreements (e.g., joint
ventures, lending services, distribution) from the Convention.
463) This is consistent with the existence of international limits on Contracting States’
applications of Article II’s nonarbitrability and “null and void” exceptions to the
presumptive validity of international arbitration agreements. See §4.04[A][4]; §4.05[A][2].
464) See New York Convention, Arts. V(2)(a)-(b); §26.05[C][9]-§26.05[C][10].
465) See New York Convention, Art. II(1); §6.01. See also Moses, Public Policy Under the New York
Convention: National, International, and Transnational, in K. Fach Gomez & A. Lopez-
Rodriguez (eds.), 60 Years of the New York Convention: Key Issues and Future Challenges 169
(2019).
466) See §2.03[B][1][b][i]-§2.03[B][1][b][ii].
467) G. Born & P. Rutledge, International Civil Litigation in United States Courts 299-314 (7th ed.
2023).
468) It is also awkward to treat consumer transactions, which are usually defined with reference
to a specific financial amount, see §6.04[H], as “non-commercial” when slightly larger
transactions would be categorized as “commercial.” An alternative analysis would be to
attempt to categorize consumer transactions as commercial, but nonarbitrable, though
this analysis is also subject to criticism. See §6.04[H][4].
469) See §6.04[H][4]; §6.06.
470) French Decree No. 90-170 of 16 February 1990, [1990] O.J. 2344; Kiffer, National Report for
France (2020 through 2021) , in L. Bosman (ed.), International Handbook on Commercial
Arbitration 1, 28 & n.74 (2020 & Update December 2020).
471) 2522 U.N.T.S. 299 (2008).
472) European Convention, Art. I(a) (emphasis added).
473) That is clear from the Convention’s text. It has also been affirmed by arbitral authority.
Interim Ad Hoc Award of 18 November 1983, X Y.B. Comm. Arb. 37 (1985).
474) The same approach is adopted in the 1987 Amman Arab Convention on Commercial
Arbitration. Article 2 provides that the Convention applies to “commercial disputes
between natural or legal persons of any nationality, linked by commercial transactions
with one of the Contracting States.” The Convention expressly adopts a uniform,
international standard for “commercial,” rather than suggesting any possibility for
individual national “opt-outs.” Amman Arab Convention on Commercial Arbitration, Art. 2.
See Jalili, Amman Arab Convention on International Commercial Arbitration, 7(1) J. Int’l Arb.
139 (1990).
475) Robert, La Convention Européenne sur l’Arbitrage Commercial International Signée à Genève
le 21 Avril 1961, 1961 Dalloz Chron. 173. See also de la Brena, Article 1: Scope of the
Convention, in G. Zeiler & A. Siwy (eds.), The European Convention on International
Commercial Arbitration: A Commentary 31, 39 (2018) (drafters chose term “international
trade” in Article 1 to avoid undermining uniform application of Convention, due to
diverging interpretations among domestic legal systems).
476) de la Brena, Scope of the Convention, in G. Zeiler & A. Siwy (eds.), Article 1: The European
Convention on International Commercial Arbitration: A Commentary 31 (2018). Courts and
tribunals have applied the Convention to a wide variety of cases, including disputes
related to joint ventures, shareholder disputes and leases of office premises.
477) Inter-American Convention, Art. 1 (emphasis added).

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 478) van den Berg, The New York Convention 1958 and Panama Convention 1975: Redundancy or
Compatibility?, 5 Arb. Int’l 214, 220 (1989).
479) For interpretations of “commercial” under the Inter-American Convention, compare J. Lew,
L. Mistelis & S. Kröll, Comparative International Commercial Arbitration ¶¶4-25 to 26 (2003)
(“When the ambit of a ‘commercial transaction’ is to be ascertained, regard should be
given to the international character of a convention and the need to promote uniformity.
Accordingly, only an autonomous and comparative interpretation and characterization is
appropriate”) with van den Berg, The New York Convention 1958 and Panama Convention
1975: Redundancy or Compatibility?, 5 Arb. Int’l 214, 220 (1989) (“Unlike the New York
Convention, which specifies that the word ‘commercial’ is to be determined under the
national laws of the State making the reservation, the Panama Convention is silent on the
applicable law. Presumably, the same law as in the New York Convention applies in case of
the Panama Convention”). This latter observation misses the mark: the essential point is
that the Inter-American Convention provides for a uniform international standard of
“commercial,” not requiring (or permitting) reference to national laws.
480) See §2.03[B][2].
481) See §2.03[B][1][b][ii].
482) UNCITRAL Model Law, Art. 1(1) (emphasis added). See Polkinghorne, Timonen & Larkimo,
Article 1: Scope of Application, in I. Bantekas et al. (eds.), UNCITRAL Model Law on
International Commercial Arbitration: A Commentary 13-19 (2020); H. Holtzmann & J.
Neuhaus, A Guide to the UNCITRAL Model Law on International Commercial Arbitration:
Legislative History and Commentary 32-35 (1989). The Model Law’s title similarly refers to
“International Commercial Arbitration.”
483) UNCITRAL Model Law, Art. 1(1) n.2.
484) See UNCITRAL, Analytical Commentary on Draft Text of A Model Law on International
Commercial Arbitration, U.N. Doc. A/CN.9/264, Art. 1, ¶¶16 et seq. (1985). See generally A.
Broches, Commentary on the UNCITRAL Model Law on International Commercial Arbitration
Art. 1, ¶¶1 et seq. (1990).
485) UNCITRAL, Digest of Case Law on the Model Law on International Commercial Arbitration 8-9
(2012) (“Article 1 defines the scope of application of the Model Law by reference to the
notion of ‘international commercial arbitration,’ and provides for a broad definition of the
term[] ‘commercial.’”; “The footnote to Article 1(1) calls for ‘a wide interpretation’ and
offers an illustrative and open-ended list of relationships that might be described as
commercial in nature”) (quoting UNCITRAL, Analytical Commentary on Draft Text of A Model
Law on International Commercial Arbitration, U.N. Doc. A/CN.9/264, Art. 1, ¶¶16-21 (1985)).
486) G. Petrochilos, Procedural Law in International Arbitration 5 (2004) (“[T]he legal foundation
of a claim, that is, whether it be framed in the language of contract, tort or restitution, is
irrelevant” to the question whether an arbitration is “commercial”); Reddy & Nagaraj,
Arbitrability: The Indian Perspective , 19 J. Int’l Arb. 117 (2002). See also Uber v. Heller, 2020
SCC 16, ¶¶211-15 (Canadian S.Ct.) (Côté J., dissenting) (citing G. Born, International
Commercial Arbitration (2d ed. 2014)) (analysis of whether dispute is “commercial” should
focus on nature of transaction or relationship between parties instead of nature of
dispute).
487) See G. Born & P. Rutledge, International Civil Litigation in United States Courts 301-03 (7th
ed. 2023).
488) See, e.g., Australian International Arbitration Act, §16; British Columbia International
Commercial Arbitration Act, §1(6); Cyprus Arbitration Law, §§2(4)-(5); Egyptian Arbitration
Law, Art. 2; Nigerian Arbitration and Conciliation Act, §57(1).
489) Québec Civil Code, Arts. 2638-43; Québec Code of Civil Procedure, Arts. 382, 940-51.
490) See, e.g., French Code of Civil Procedure, Art. 1504 (“An arbitration is international when
international trade interests are at stake”); Russian International Arbitration Law, Art. 1(3)
(“disputes arising from civil law relationships in the course of foreign trade and other forms
of international economic relations”); Bulgarian Arbitration Law, Art. 1(2) (“International
commercial arbitration resolves civil pecuniary disputes arising from international trade
relations …”); Tunisian Arbitration Code, Art. 48(1)(d); Ouerfelli, National Report for Tunisia
(2009 through 2022) , in L. Bosman (ed.), International Handbook on Commercial Arbitration
1, 5 (2023 & Update February 2022).

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 491) See, e.g., Hancock Prospecting Pty Ltd v. Rinehart, [2017] FCAFC 170 (Canadian Fed. Ct.)
(whether family or domestic dispute, arbitration to resolve dispute can be characterised
as commercial dispute); United Mexican States v. Metalclad Corp., (2001) 89 BCLR3d 359, ¶95
(B.C. Sup. Ct.) (“The international CAA is based on a Model Law for international commercial
arbitrations. … In the UNCITRAL report, the term ‘commercial’ is explained by the following
footnote: ‘The term ‘commercial’ should be given a wide interpretation so as to cover
matters arising from all relationships of a commercial nature. …’ This footnote was
discussed in the commentary as follows: ‘The content of the footnote reflects the
legislative intent to construe the term ‘commercial’ in a wide manner. This call for a wide
interpretation is supported by an illustrative list of commercial relationships. Although the
examples listed include almost all types of contexts known to have given rise to disputes
dealt with in international commercial arbitrations, the list is expressly not exhaustive’”);
Carter v. McLaughlin, 27 (1996) OR3d 792, ¶15 (Ontario Super. Ct.) (sale of personal residence
is “commercial”; no requirement that parties be merchants); Comed Chems. Ltd v. C. N.
Ramchand, AIR 2009 SC 494 (Indian S.Ct.) (same). Compare Borowski v. Heinrich Fiedler
Perforiertechnik GmbH, (1994) 158 AR 213, ¶30 (Alberta Q.B.) (employment relations not
commercial).
492) A negative inference is arguably applicable to the definition’s omission of particular types
of contracts or relations. As discussed below, consumer and employment contracts are
frequently the subject of either nonarbitrability or invalidity rules of national law. See
§6.04[G]-§6.04[H].
493) See UNCITRAL Model Law, Art. 1(1) n.2. The existence and relevance of any negative
inference was recently debated by the Canadian Supreme Court, with the majority holding
that employment disputes are not covered by the Model Law because “trade” transactions
do not refer to consumers or employees. Uber v. Heller, 2020 SCC 16, ¶27 (Canadian S.Ct.)
(citing G. Born, International Commercial Arbitration 309 (2d ed. 2014)). In contrast, Justice
Côté’s dissenting opinion concluded that the Model Law applies to employment disputes
provided that the underlying relationship is commercial. Id. at ¶211-15 (citing G. Born,
International Commercial Arbitration, 308-09 (2d ed. 2014)). As discussed in text, Justice
Côté’s conclusion is more consistent with the text and purposes of the Model Law.
494) See Id. at Art. 1(1) n.2. See UNCITRAL, Analytical Commentary on Draft Text of A Model Law on
International Commercial Arbitration, U.N. Doc. A/CN.9/264, Art. 1, ¶¶18 et seq. (1985).
495) Alternative approaches, discussed below, are to apply more specifically-tailored rules of
validity or nonarbitrability to particular types of transactions or claims. See UNCITRAL
Model Law, Art. 1(5); §6.03[C][1]-§6.03[C][2].
496) See UNCITRAL Model Law, Art. 1(5); §6.03[C][1].
497) See, e.g., Uber v. Heller, 2020 SCC 16 (Canadian S.Ct.) (employment disputes not covered by
term “commercial” in Model Law); Rhinehart v. Legend 3D Canada Inc., [2019] ONSC 3296,
¶27 (Ontario Super. Ct.) (labor or employment disputes not covered by term “commercial”
in Ontario International Commercial Arbitration Act); Ross v. Christian & Timbers, Inc.,
(2002) 18 CPC5th 348 (Ontario Super. Ct.) (employer/employee relationship, as opposed to
independent contractor relationship, was noncommercial); Borowski v. Heinrich Fiedler
Perforiertechnik GmbH, (1994) 158 AR 213 (Alberta Q.B.) (same). See also Patel v. Kanbay Int’l
Inc., [2008] ONCA 867 (Ontario Ct. App.) (claim for wrongful dismissal and tort of negligent
misrepresentation was held not to satisfy “commercial” requirement).
498) See §2.03[B][1][a]-§2.03[B][1][b].
499) U.S. FAA, 9 U.S.C. §2.

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 500) See, e.g., Citizens Bank v. Alafabco, 539 U.S. 52, 56 (U.S. S.Ct. 2003) (“We have interpreted the
term ‘involving commerce’ in the FAA as the functional equivalent of the more familiar
term ‘affecting commerce’ – words of art that ordinarily signal the broadest permissible
exercise of Congress’ Commerce clause power. Because the statute provides for ‘the
enforcement of arbitration agreements within the full reach of the Commerce Clause,’ it is
perfectly clear that the FAA encompasses a wider range of transactions than those actually
‘in commerce’ – that is, ‘within the flow of interstate commerce’”) (quoting Allied-Bruce
Terminix Cos. v. Dobson, 513 U.S. 265, 273 (U.S. S.Ct. 1995)); Allied-Bruce Terminix Cos., 513 U.S.
at 272-74 (broadly interpreting “involving commerce” language); Prima Paint Corp. v. Flood
& Conklin Mfg Co., 388 U.S. at 401-02 n.7 (U.S. S.Ct. 1967) (favoring broad interpretation of
“involving commerce” to include contracts facilitating interstate commerce); Robert
Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402 (2d Cir. 1959); Baer v. Terminix Int’l Co.,
LP, 975 F.Supp. 1272 (D. Kan. 1997) (broadly interpreting “commerce”); Fairchild & Co. v.
Richmond, Fredericksburg & Potomac R.R. Co., 516 F.Supp. 1305, 1310 (D.D.C. 1981) (“involving
commerce” is not to be narrowly construed and “‘reaches not only the actual physical
interstate shipment of goods, but also contracts relating to interstate commerce’”)
(quoting H.R. Rep. No. 96, 68th Cong., 1st Sess. 1 (1924)).
501) See, e.g., Zhongshan Fucheng Indus. Inv. Co. v. Nigeria, 2023 WL 417975, at *5 (D.D.C.) (“‘In the
context of international arbitration, “commercial” refers to “matters or relationships,
whether contractual or not, that arise out of or in connection with commerce”’”) (quoting
Belize Soc. Dev., Ltd v. Belize, 794 F.3d 99, 103-4 (D.D.C. 2015)); Corcoran v. Ardra Ins. Co., 657
F.Supp. 1223, 1228 (S.D.N.Y. 1987) (fact that parties were operating in highly regulated
industry does not preclude relationship from being “commercial”).
502) See, e.g., Ziober v. BLB Res., Inc., 839 F.3d 814 (9th Cir. 2016); Bautista 396 F.3d 1289;
Francisco, 293 F.3d at 274 (“[A]n employment contract is ‘commercial’”); Shirk v. Gonzales,
2018 WL 2426263 (D.N.M.) (the employment contract evidences “a transaction involving
commerce”); Physiotherapy Assocs. v. Schexneider, 1998 WL 34076415, at *1 (W.D. Ky.) (FAA
clearly covers employment agreements); Crawford v. W. Jersey Health Sys., 847 F.Supp. 1232,
1240 (D.N.J. 1994) (employment agreement among national health care providers is
transaction involving commerce and subject to FAA); Cullen v. Paine, Webber, Jackson &
Curtis, Inc., 587 F.Supp. 1520, 1522 (D.C. Ga. 1984); Legg, Mason & Co. v. Mackall & Coe, Inc.,
351 F.Supp. 1367, 1371 (D.D.C. 1972).
As discussed below, the FAA contains an exception to its scope (9 U.S.C. §1) which excludes
certain types of employment relations from the Act’s coverage. See §6.04[G][2].
503) See, e.g., CompuCredit Corp. v. Greenwood, 565 U.S. 95, 104-05 (U.S. S.Ct. 2012) (consumer
lending transaction satisfies FAA’s commerce requirement); Jenkins v. First Am. Cash
Advance of Ga., LLC, 400 F.3d 868, 874-75 (11th Cir. 2005) (consumer lending transaction
satisfies FAA’s commerce requirement); Richardson v. Palm Harbor Homes, Inc., 254 F.3d
1321, 1324 (11th Cir. 2001) (consumer contract for purchase of mobile home is “transaction
involving commerce” under FAA); Zink v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 13 F.3d
330, 333 (10th Cir. 1993) (agreement between parties providing for trade in securities
involved commerce); Beard v. Santander Consumer USA, Inc., 2012 WL 1292576 (E.D. Cal.)
(consumer lending transaction satisfies FAA’s commerce requirement); Adkins v. Palm
Harbor Homes, Inc., 157 F.Supp.2d 1256, 1257-58 (M.D. Ala. 2001) (parties did not dispute that
sale of mobile home constituted “interstate commerce”); Palozie v. State Farm Mut. Auto.
Ins. Co., 1996 WL 814533, at *2 (D. Ariz.) (consumer insurance policies involve interstate
commerce and are subject to FAA); Crawford v. Great Am. Cash Advance, Inc., 644 S.E.2d 522,
695 (Ga. Ct. App. 2007) (proposition that payday loans constitute commerce was not
disputed by party contesting arbitration provision). See also Koch, Problem with Your Bank
Account? Tell It to the … Arbitrator?, 60 B.C.L. Rev. 1605 (2019).
504) See §2.03[B][1][b][i]; §6.04[G][2]; U.S. FAA, 9 U.S.C. §1.
505) Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 120 (U.S. S.Ct. 2001); Bissonnette v. LePage
Bakeries Park Street, LLC, 2022 WL 4457998, at *11 (2d Cir.) (“[A]n individual [only] works in a
transportation industry if the industry in which the individual works pegs its charges chiefly
to the movement of goods or passengers, and the industry's predominant source of
commercial revenue is generated by that movement”). See Ware, Employment Arbitration
and Voluntary Consent, 25 Hofstra L. Rev. 83, 128-38 (1996).
506) See §2.03[B][1][b][i].
507) U.S. FAA, 9 U.S.C. §201. See Bautista, 396 F.3d 1289.
508) See authorities cited §2.03[B][1][b][i], pp. 299-301; Bautista, 396 F.3d 1289; Francisco, 293
F.3d at 274.

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 509) Article 2061 of the French Civil Code was amended in 2001 to provide: “Subject to
particular legislative provisions, the arbitration clause is valid in contracts concluded
because of a professional activity.” French Civil Code, Art. 2061. The provision previously
provided that “[a]n arbitration clause shall be void unless the law provides otherwise.”
510) See, e.g., Judgment of 5 January 1999, Zanzi v. de Coninck , 1999 Rev. Arb. 260 (French Cour de
Cassation Civ. 1) (“principle of validity of the international arbitration agreement without
any condition of commerciality”); Judgment of 4 July 1972, Hecht v. Buisman’s, 99 J.D.I.
(Clunet) 843 (French Cour de Cassation Civ. 1) (1972); Judgment of 17 January 2002, SA
Omenex v. Hugon , 2002 Rev. Arb. 392, 398 (Paris Cour d’Appel) (“it follows from the
principle of validity, subject to international public policy, of the international arbitration
agreement without any condition of commerciality”). See also C. Seraglini & J. Ortscheidt,
Droit de l’Arbitrage Interne et International ¶29 (2013).
511) Judgment of 7 December 1994, V 2000 v. Project XJ 220 ITD , 1996 Rev. Arb. 245 (Paris Cour
d’Appel) (consumer’s purchase of automobile).
512) English Arbitration Act, 1996, §§1, 6; R. Merkin, Arbitration Law ¶1.22(a) (1991 & Update July
2023).
513) German ZPO, §1025. Section 1030(1) “Any claim involving an economic interest
(vermögensrechtlicher Anspruch) can be the subject of an arbitration agreement. An
arbitration agreement concerning claims not involving an economic interest shall have
legal effect to the extent that the parties are entitled to conclude a settlement on the
issue in dispute.”
514) Italian Code of Civil Procedure, Art. 806; Judgment of 13 September 2002, Lorenzini v.
Madaus, 2003 Corr. Giur. 1626 (Milano Corte di Appello).
515) Japanese Arbitration Law, Art. 2 (omitting any “commercial” requirement, although limiting
Law’s application to “civil disputes”).
516) See §4.04[A][4]; §5.06[A][3].
517) See §6.01.
518) See §2.03[B][1][b][ii].
519) Chinese Supreme Court, Notice on the Implementation of China’s Accession to the
Convention on the Recognition and Enforcement of Foreign Arbitral Awards (10 Apr. 1987),
reprinted in C. Dejun, M. Moser & W. Shengchang, International Arbitration in the People’s
Republic of China: Commentary, Cases and Materials 754-57 (2d ed. 2000).
520) RM Inv. & Trading Co. Pvt Ltd (India) v. Boeing Co., 1994 AIR 1136 (Indian S.Ct.); India Organic
Chems., Ltd v. Chemtex Fibres Inc., AIR 1978 Bom 106 (Bombay High Ct. 1977) (1979). Compare
Comed Chems. Ltd v. C. N. Ramchand, AIR 2009 SC 494 (Indian S.Ct.) (contractual
relationship between employee and employer was “commercial” relationship).
521) Judgment of 10 November 1993, Haddad v. Societe d’Investissement Kal , XXIII Y.B. Comm.
Arb. 770 (Tunisian Cour de Cassation) (1998).
522) Borowski v. Heinrich Fiedler Perforiertechnik GmbH, (1994) 158 AR 213 (Alberta Q.B.).
523) Of course, as discussed below, both the “nonarbitrability” exception under such
instruments and substantive contract law defenses (such as unconscionability) remain
applicable, even where a dispute concerns a commercial relationship. See Chapter 5.
524) See G. Born & P. Rutledge, International Civil Litigation in United States Courts 247-399 (7th
ed. 2023).
525) That result rests on the distinction between iure gestionis and iure imperii. See U.N.
Convention on Jurisdictional Immunities of States and Their Property, Arts. 2(1)-(2), 10,
reprinted in 44 I.L.M. 801 (2005); U.S. Foreign Sovereign Immunities Act, 28 U.S.C. §§1603(d),
1605(a)(2) (“commercial activity”); European Convention on State Immunity, Art. 7
(“industrial, commercial or financial activity”); U.K. State Immunity Act, 1978, §§3, 4, 7-11.
526) See, e.g., Argentina v. Weltover, 504 U.S. 607 (U.S. S.Ct. 1992); Wye Oak Tech., Inc. v. Iraq, 24
F.4th 686, 691 (D.C. Cir. 2022); Butcher v. St. Lucia, (1998) 21 CPC4th 236 (Ontario Super. Ct.).
527) See §1.04[A]; §1.04[B][1]; §2.01[A][1]. As discussed elsewhere, this is the case under the New
York Convention, the Inter-American Convention, the European Convention and other
international instruments. See §1.04[A]; §2.03[C][1].
528) As noted above, this is the case in the United States, France, Australia, Canada and many
UNCITRAL Model Law jurisdictions. See §1.04[B]. As also discussed above, other states have
enacted a single arbitration statute, applicable to both domestic and international
arbitrations; this is the case in England, Germany and Spain. See §1.04[B].
529) Geneva Protocol, Art. 1 (“Each of the Contracting States recognises the validity of an
agreement whether relating to existing or future differences between parties subject
respectively to the jurisdiction of different Contracting States by which the parties to a
contract agree to submit to arbitration”).
530) See §1.04[A][1]; §2.01[A][1][a]; §2.02[A].

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 531) See New York Convention, Art. I(1) (“This Convention shall apply to the recognition and
enforcement of arbitral awards made in the territory of a State other than the State where
the recognition and enforcement of such awards are sought. … It shall also apply to arbitral
awards not considered as domestic awards in the State where their recognition and
enforcement are sought”); §2.03[C][1][a][ii]; §22.02[E].
532) See, e.g., Smith/Enron Cogeneration LP Inc. v. Smith Cogeneration Int’l, Inc., 198 F.3d 88, 94
(2d Cir. 1999) (“the Convention’s sweeping approach towards arbitral agreements in Article
II”); Clientron Corp. v. Devon IT, Inc., 35 F.Supp.3d 665, 671 (E.D. Pa. 2014) (referring to New
York Convention’s jurisdictional requirements as “optional”); Ebb, Developing Views on
What Constitutes A Foreign Arbitration Agreement and A “Foreign Award” Under the New York
Convention, 1 Am. Rev. Int’l Arb. 364 (1990); A. van den Berg, The New York Arbitration
Convention of 1958 8 (1981) (“The field of application of the New York Convention is broader
than that of the Geneva Treaties. The New York Convention applies to an award made in
any other State; it no longer requires that the parties be subject to the jurisdiction of
different Contracting States”); van den Berg, When Is An Arbitral Award Non-Domestic Under
the New York Convention of 1958?, 6 Pace L. Rev. 25, 51-54 (1985).
533) See §2.03[C][1][a][ii].
534) See §2.03[C][1][a][iii].
535) See §2.03[C][2][b]; §22.02[E].
536) A. van den Berg, The New York Arbitration Convention of 1958 57 (1981) (“As the [New York]
Convention applies to the enforcement of an award made in another State, it could apply
to the enforcement of an agreement providing for arbitration in another State”). This
conclusion is supported by a measure of national judicial authority considering the
application of the Convention to arbitration agreements. See §2.03[C][1][a][ii](1).
537) See New York Convention, Art. I(1); §2.03[C][1][a][ii]. Article I(1) defines the awards that are
subject to the Convention as follows: “This Convention shall apply to the recognition and
enforcement of arbitral awards made in the territory of a State other than the State where
the recognition and enforcement of such awards are sought, and arising out of differences
between persons, whether physical or legal. It shall also apply to arbitral awards not
considered as domestic awards in the State where their recognition and enforcement are
sought.”
538) See §22.02[E][1][a][i].
539) Reisman & Iravani, Arbitration and National Courts: Conflict and Cooperation: The Changing
Relation of National Courts and International Commercial Arbitration, 21 Am. Rev. Int’l Arb. 5,
8 (2010); van den Berg, The New York Convention: Its Intended Effects, Its Interpretation,
Salient Problem Areas, in M. Blessing (ed.), The New York Convention of 1958 25, 34 (1996).
Compare A. Samuel, Jurisdictional Problems in International Commercial Arbitration 91 (1989)
(“Article I, which is intended to define the scope of the Convention, cannot be applied by
analogy, because it only sets limits on the enforcement of awards”).Complexities arise
when the parties’ arbitration agreement does not specify the arbitral seat (and this
selection is left to an arbitral institution or the arbitral tribunal). See §14.07-§14.08. In this
event, it is not possible to determine in advance where the arbitral seat is located;
equally, the parties may agree to change the seat during the course of the arbitration. Both
possibilities, which are not uncommon, underscore the textual and conceptual difficulties
with transposing the treatment of “foreign” awards to the context of agreements to
arbitrate. See also §4.04[A][1][b][ii].

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 540) See §2.03[C][2][a] & §2.03[C][2][e]; Smith/Enron Cogeneration LP Inc. v. Smith Cogeneration
Int’l, Inc., 198 F.3d 88, 93-94 (2d Cir. 1999) (“Under Article II of the Convention, the
citizenship of the parties to the agreement and the location of the disputed subject matter
are not controlling”); Judgment of 14 March 1984, IV Y.B. Comm. Arb. 341 (Swiss Fed. Trib.)
(1984) (enforcing award made in France between two Swiss parties pursuant to New York
Convention); Judgment of 9 March 2023 , I ZB 33/22, 21 SchiedsVZ 238 (2023) (German
Bundesgerichtshof) (“[D]ecision of the courts at the seat of arbitration rejecting a set-aside
application is not binding on German courts when they are seized to declare a foreign
arbitral award enforceable in Germany”); Judgment of 8 January 1990, XVII Y.B. Comm. Arb.
539 (Milan Tribunale) (1992) (Convention applicable to agreement between two Italian
parties to arbitrate abroad); Judgement of 24 May 2011, Case No. Resp 1231554 (Brazilian
Superior Tribunal de Justiça) (“In the Brazilian legal framework, the geographical criterion
(ius solis) was selected for determining the nationality of the arbitral award, solely based
on the place where a decision is rendered”); Ju d gment of 20 December 2022, Case No.
21291-2019 (Chilean Corte Suprema). See also Ehle, in R. Wolff (ed.), New York Convention:
Article-by-Article Commentary Art. I, ¶133-34 (2d ed. 2019) (“[U]nder the Convention the
nationalities of the parties play no role in the characterization of an arbitral award as
foreign”); van den Berg, When Is An Arbitral Award Non-Domestic Under the New York
Convention of 1958?, 6 Pace L. Rev. 25 (1985).
541) See §2.03[C][2][b][v]; Jones v. Sea Tow Servs. Freeport NY, Inc., 30 F.3d 360 (2d Cir. 1994);
Shilmann Rocbit, LLC v. Am. Blasting Consumables, Inc., 2016 WL 5843880, at *6 (S.D. W. Va.)
(“In determining what is sufficient for a “reasonable relationship,” courts have held that
two domestic parties whose only international connection is merely an enforcement
provision abroad is insufficient for enforcement under the Convention”); Best Concrete Mix
Corp. v. Lloyd’s of London Underwriters, 413 F.Supp.2d 182, 188 (E.D.N.Y. 2006) (“Only where
an agreement satisfies both conditions will it be deemed ‘entirely domestic’ and,
therefore, outside the scope of the Convention”) (citing Jones, 30 F.3d at 365); Ensco
Offshore Co. v. Titan Marine LLC, 370 F.Supp.2d 594, 597-601 (S.D. Tex. 2005); Reinholtz v.
Retriever Marine Towing & Salvage, 1994 AMC 2981 (S.D. Fla.), aff’d, 46 F.3d 71 (11th Cir. 1995);
Brier v. Northstar Marine, Inc., 1992 WL 350292, at *8 (D.N.J.); Wilson v. Lignotock U.S.A., Inc.,
709 F.Supp. 797 (E.D. Mich. 1989); Coastal States Trading, Inc. v. Zenith Navigation, SA, 446
F.Supp. 330, 341 (S.D.N.Y. 1977).
542) See, e.g., Jones v. Sea Tow Servs. Freeport NY, Inc., 30 F.3d 360, 366 (2d Cir. 1994) (“[A]s
between the parties … a United States forum is required for the enforcement of any
arbitral award and even to compel arbitration. The district court’s observation that the
Committee of Lloyd’s has a long history of experience in the arbitration of salvage disputes
lends no support to the conclusion that the parties envisioned performance in England.
There is no indication that competent salvage arbitrators are unavailable in the United
States or that the necessary expertise is lacking here”); Mavel, AS v. Rye Dev., LLC, 2023 WL
144992, at *3 (S.D.N.Y.) (Convention did not apply because agreement was between U.S.
citizens and involved an alleged breach that occurred in the United States by individuals
located within the United States and in relation to U.S. based projects); Matabang v.
Carnival Corp., 630 F.Supp.2d 1361, 1363–64 (S.D. Fla. 2009) (if parties to agreement are both
citizens, “their agreement to arbitrate falls under the New York Convention only if
significant extra-domestic elements animate their relationship and enhance the concerns
favoring recognition of foreign arbitration agreements”); Ensco Offshore Co. v. Titan Marine
LLC, 370 F.Supp.2d 594, 597-98 (S.D. Tex. 2005) (“[T]he fact that an agreement contains
arbitration and choice-of-law clauses identifying a foreign country does not in and of itself
meet the fourth factor’s requirement”); Ecuador v. ChevronTexaco Corp., 376 F.Supp.2d 334
(S.D.N.Y. 2005), rev’d on other grounds, 638 F.3d 384 (2d Cir. 2011); Sumitomo Corp. v.
Parakopi Compania Maritima, 477 F.Supp. 737, 741 (S.D.N.Y. 1979) (“In delineating the
coverage of the Convention, Congress explicitly excluded purely domestic transactions”);
Coastal States Trading, Inc. v. Zenith Navigation, SA, 446 F.Supp. 330, 341 (S.D.N.Y. 1977);
Fuller Co. v. Compagnie des Bauxites de Guinée, 421 F.Supp. 938, 941 (W.D. Pa. 1976).
543) U.S. FAA, 9 U.S.C. §202 (“An arbitration agreement or arbitral award arising out of [a legal,
commercial] relationship which is entirely between citizens of the United States shall be
deemed not to fall under the Convention unless that relationship involves property
located abroad, envisages performance or enforcement abroad, or has some other
reasonable relation with one or more foreign states”). See also §2.03[C][2][b].
544) See §2.03[C][2][b][i].

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 545) See also §22.02[E][1][a][i]. In England, Germany and Switzerland, for example, an arbitral
award is considered to be a “foreign” award for the purposes of the New York Convention
only where it has been made in an arbitration seated outside the state where recognition
is sought. See English Arbitration Act, 1996, §100(1); R. Merkin, Arbitration Law ¶19.1 (1991 &
Update July 2023); German ZPO, §§1025(1), 1061(1); Geimer, in R. Zöller (ed.),
Zivilprozessordnung §1061, ¶3 (34th ed. 2022); Judgment of 14 February 2011, DFT
4A_508/2010, ¶3 (Swiss Fed. Trib.); C. Müller & S. Pearson, Swiss Case Law in International
Arbitration Art. 194, ¶1 (3d ed. 2019); Patocchi & Jermini, in S. Berti et al. (eds.), International
Arbitration in Switzerland Art. 194, ¶12 (2000).
546) As discussed below, however, the agreement might be subject to the Convention by virtue
of the second criterion applicable to agreements that produce “non-domestic” awards. See
§2.03[C][1][a][ii](3).
547) See §2.03[C][1][a][ii](3); §2.03[C][2][b]; §22.02[E][1][a][ii]; Bergesen v. Joseph Muller Corp., 710
F.2d 928 (2d Cir. 1983); E. Gaillard & J. Savage (eds.), Fouchard Gaillard Goldman on
International Commercial Arbitration ¶257 (1999) (“[T]he Convention also governs awards
which are not considered as domestic awards in the country where their recognition and
enforcement are sought”); J.-F. Poudret & S. Besson, Comparative Law of International
Arbitration ¶¶121 et seq. (2d ed. 2007).
548) A. van den Berg, The New York Arbitration Convention of 1958 22 (1981) (“The second criterion
– an award not considered as domestic – has remained a dead letter…”).
549) See §22.02[E][1][a][ii](1).
550) Nothing in the structure or purposes of the Convention argues for a different result,
because the provision in question is merely a mechanism by which Contracting States are
free to unilaterally extend the scope of the Convention. See §22.02[E][1][a][ii](2). See also A.
van den Berg, The New York Convention of 1958: An Overview 2 (2009) (“A court (or, for that
matter, implementing legislation) may, but is not obliged to, treat an arbitral award made
within its jurisdiction to be non-domestic and determine that it is covered by the
Convention”).
551) See §22.02[E][1][a][ii](2).This contradicts the Convention’s basic purpose of achieving
uniformity, but is an almost inevitable consequence of Article I’s provision that the
Convention applies to “arbitral awards not considered as domestic awards in the State
where their recognition and enforcement are sought.” New York Convention, Art. I(2). One
might attempt to develop an argument that Contracting States must treat certain awards
(and agreements) as non-domestic, but this is difficult to reconcile with the Convention’s
text and purposes. See §22.02[E][1][a][ii].
552) Of course, this category of awards could include awards that are not “foreign.” See §22.02[E]
[1][a][ii](1).
553) See id.
554) See §2.03[C][1][a].
555) Smith/Enron Cogeneration LP Inc. v. Smith Cogeneration Int’l, Inc., 198 F.3d 88, 94 (2d Cir.
1999); A. Samuel, Jurisdictional Problems in International Commercial Arbitration 91 (1989).
556) See §1.04[A][1]; §2.01[A][1][a]. See also A. van den Berg, The New York Arbitration Convention
of 1958 61 (1981) (“[T]he primary goal of the Convention is to facilitate the enforcement of
agreements and awards. … Accordingly, the main purpose of the Convention’s provisions
concerning the arbitration agreement is to give uniform rules for the form of the arbitration
agreement (‘in writing’), and to assure that the international commercial arbitration will
not be frustrated by court litigation on the same merits as covered by the arbitration
agreement. It is obvious that the purposes of uniformity can be fulfilled only if the
arbitration agreement is enforceable under Article II(3) in all Contracting States, including
the State where the arbitration is to take place”).
557) Geneva Protocol, Art. 1. See §1.01[C][1]; §2.03[C][1][a].
558) Geneva Protocol, Arts. 1, 4. See §1.01[C][1].
559) On the contrary, they intended the opposite – that is, to ensure that the Convention
expanded and improved the Protocol’s provisions regarding arbitration agreements. See
§1.04[A][1].
560) See also A. van den Berg, The New York Arbitration Convention of 1958 63 (1981) (Convention
applies to “only those [arbitration agreements] which have an international element”).
Compare Ehle, in R. Wolff (ed.), New York Convention: Article-by-Article Commentary Art. I,
¶133-34 (2d ed. 2019) (“[T]he Convention applies independently of factors such as the place
of residence or domicile of the parties, the applicable law or the location(s) where
hearings … occurred. There is no ‘internationality’ requirement. Accordingly, the
Convention applies … to a foreign arbitral award even where the underlying economic
transaction is purely domestic in nature”).
561) This definition is elaborated below. See §2.03[C][2][g].

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 562) See §1.04[A][1]; §2.01[A][1][a]; §22.02[E][1][a].
563) See §2.03[C][2]; Smith/Enron Cogeneration LP Inc. v. Smith Cogeneration Int’l, Inc., 198 F.3d
88 (2d Cir. 1999); Bergesen v. Joseph Muller Corp., 710 F.2d 928, 932 (2d Cir. 1983). See also
French Code of Civil Procedure, Art. 1504 (“International arbitration involves international
trade interests”); Romanian Code of Civil Procedure, Art. 369 (“[A]n arbitration taking place
in Romania shall be considered international if it has arisen out of a private law relation
having a foreign element”).
564) European Convention, Art. I(1)(a) (emphasis added). See Judgment of 13 October 2000, XXVI
Y.B. Comm. Arb. 1141, ¶8 (Italian Corte di Cassazione) (2001) (“With the aim of promoting
international trade, the European Convention binds its Member States to recognize
international commercial arbitrations concerning the import and export of goods, where
part of the contractual obligations is performed in different countries”).
565) See de la Brena, Article 1: Scope of the Convention, in G. Zeiler & A. Siwy (eds.), The European
Convention on International Commercial Arbitration: A Commentary 31, 32 (2018). The
European Convention was the first international arbitration treaty that included an express
definition of the term “international” with respect to arbitration.
566) It might be suggested that similar conclusions have been reached by U.S. courts in
interpreting the New York Convention. See §2.03[C][1][a][ii](2); §2.03[C][2][b]; §22.02[E][2][a]
[iv]. In fact, U.S. decisions interpreting the New York Convention rarely have involved local
parties and purely local transactions.

567) See §1.04[A][3].

568) See §2.03[C][1][a][iii].
569) See id.
570) UNCITRAL Model Law, Art. 1(3). See H. Holtzmann & J. Neuhaus, A Guide to the UNCITRAL
Model Law on International Commercial Arbitration: Legislative History and Commentary 28-
35, 41-43 (1989); Polkinghorne, Timonen & Larkimo, Article 1: Scope of Application, in I.
Bantekas et al. (eds.), UNCITRAL Model Law on International Commercial Arbitration: A
Commentary 13-19 (2020).
571) UNCITRAL Model Law, Art. 1(2) (“The provisions of this Law, except Articles 8 [and] 9 … apply
only if the place of arbitration is in the territory of this State”), Art. 8 (mandatory stay of
litigation). See §2.04[B]; §8.03[C][1].
572) See UNCITRAL Model Law, Art. 1(2); §2.04[B]; §11.04[B][1].
573) Noteworthy also is that the Model Law’s provisions regarding competence-competence and
separability do not expressly apply to arbitration agreements providing for a foreign
arbitral seat. See §2.04[B]; §7.04; §11.04[B][1]; UNCITRAL Model Law, Art. 16.
574) UNCITRAL, Explanatory Note by the UNCITRAL Secretariat on the Model Law on International
Commercial Arbitration, XIX Y.B. UNCITRAL 117, ¶20 (1988). See also UNCITRAL, Explanatory
Note by the UNCITRAL Secretariat on the 1985 Model Law on International Commercial
Arbitration as Amended in 2006, ¶21 (2008) (“[S]ince Article 8 is not limited in scope to
agreements providing for arbitration to take place in the enacting State, it promotes the
universal recognition and effect of international commercial arbitration agreements”).
575) See, e.g., Russian International Arbitration Law, Art. 1(3); Dominican Republic Arbitration
Law, Art. 1(2); Nigerian Arbitration and Conciliation Act, §§57(2)-(3); Ukrainian Arbitration
Law, Arts. 1(2), (3).

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 576) See, e.g., Bulgarian Arbitration Law, Art. 1(2) (“The international commercial arbitration
resolves civil pecuniary disputes arising from foreign trade relations … if the domicile or
the seat of at least one of the parties is not in the Republic of Bulgaria”). See also Bharat
Aluminium Co. (BALCO) v. Kaiser Aluminium Technical Serv., Inc., [2012] 9 SCC 552, ¶30
(Indian S.Ct.) (Indian law “has consciously and correctly departed from [Article 1(3) of the
Model Law] and chosen only the nationality test for defining an arbitration as
‘international’”).
Tunisia appears to have adopted both the UNCITRAL Model Law’s definition of
“international” and the approach of the French Code of Civil Procedure (discussed below).
Tunisian Arbitration Code, Art. 48. It is not clear how these provisions are to be interpreted.
In China, arbitrations are categorized as domestic, foreign-related and foreign arbitrations.
A foreign arbitration is an arbitration that is seated or takes place outside China; a foreign-
related arbitration is an arbitration that is seated or takes place in China but “either or
both parties are a person of foreign nationality or a stateless person, or … domiciled in a
foreign country; or in which either or both parties’ habitual residence is in a foreign
country; or in which the legal facts that establish, change or terminate the civil legal
relationships between the parties take place in a foreign country; or in which the subject
matter of the dispute is situated in a foreign country; or in which the subject matter of the
dispute is situated in a foreign country. … Disputes between companies incorporated
under Chinese law are generally governed by the rules for domestic arbitrations.” Ribeiro,
The Time for A New Arbitration Law in China: Comparing the Arbitration Law in China with the
UNCITRAL Model Law , 34 J. Int’l Arb. 459, 476 (2017).
577) English Arbitration Act, 1996, §2; German ZPO, §1025; Spanish Arbitration Act, Art. 1(1);
Venezuelan Arbitration Law, Art. 1. See §1.04[B] (especially §1.04[B][1][d]).
578) UNCITRAL, Digest of Case Law on the Model Law on International Commercial Arbitration 8
(2012) (“Article 1 defines the scope of application of the Model Law by reference to the
notion of ‘international commercial arbitration,’ and provides for a broad definition of the
term[] ‘international’”).
579) E. Gaillard & J. Savage (eds.), Fouchard Gaillard Goldman on International Commercial
Arbitration ¶103 (1999) (“some of which are probably too broad”).
580) UNCITRAL Model Law, Art. 1(3)(a).
581) Id. at Art. 1(3)(b)(i); H. Holtzmann & J. Neuhaus, A Guide to the UNCITRAL Model Law on
International Commercial Arbitration: Legislative History and Commentary 30 (1989) (“It must
be recalled … that the Model Law applies when the place of arbitration is in the enacting
State. As long as two parties from one State may validly select a foreign place of
arbitration – and it is a basic policy of the Model Law to provide parties with such freedom
– it is essential that the resulting arbitration be considered international, because
otherwise it would be governed by the domestic law of arbitration of the chosen foreign
State. That result – submitting an arbitration between two parties from a foreign state to
the domestic law of arbitration – would be anomalous”). See also Polkinghorne, Timonen &
Larkimo, Article 1: Scope of Application, in I. Bantekas et al. (eds.), UNCITRAL Model Law on
International Commercial Arbitration: A Commentary 13-19 (2020); UNCITRAL, Report on the
Work of Its Eighteenth Session, U.N. Doc. A/40/17, ¶¶28-29 (1985).
582) UNCITRAL Model Law, Art. 1(3)(b)(ii). See Vanol Far E. Marketing Pte Ltd v. Hin Leong Trading
Pte Ltd, [1997] 3 SLR 484 (Singapore High Ct.) (arbitration may be international even if both
parties are from same state and agreement is governed by local law of that state); Ananda
Non-Ferrous Metals Ltd v. China Res. Metal & Minerals Co., [1993] 2 HKLR 331 (H.K. Ct. First
Inst.), aff’d, [1994] 1 HKC 204 (arbitration is international if substantial part of obligations is
to be performed outside of Hong Kong); Katran Shipping Co. v. Kenven Transp. Ltd , XVIII Y.B.
Comm. Arb. 175 (H.K. Ct. First Inst. 1992) (1993).
583) UNCITRAL Model Law, Art. 1(3) (“[T]he parties have expressly agreed that the subject matter
of the arbitration agreement relates to more than one country”).
584) van den Berg, The New York Convention: Its Intended Effects, Its Interpretation, Salient
Problem Areas, in M. Blessing (ed.), The New York Convention of 1958 25, 35 (1996) (“Article
II(2) does not apply to purely domestic arbitration agreement[s]”).
585) Am. Diagnostica Inc. v. Gradipore Ltd , XXIV Y.B. Comm. Arb. 574 (N.S.W. Sup. Ct. 1998) (1999).
Compare §2.03[C][1][a][ii](2); §2.03[C][2][b][v], discussing U.S. decisions holding that the
Convention and its implementing legislation would not apply to a purely domestic
agreement between two domestic U.S. parties.
586) See also §1.02[B][1].
587) This parallels the terms of the Geneva Protocol. See §1.01[C][1]; §2.03[C] (especially §2.03[C]
[1][a][iii]).

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 588) In enacting the Model Law, Germany modified the language of Article 1(3) (see §1025), and
its statute does not contain a provision similar to Article 1(3)(b)(i). Like Germany, Japan
also modified the text of Article 1(3), omitting any provision like Article 1(3)(b)(i). Japanese
Arbitration Law, Art. 3. Australia, by contrast, adopted the Model Law without change (See
Australian International Arbitration Act, §16).
Hong Kong adopted the Model Law, but made the following reservation in §5(1) (which
governs the scope of application of the Law): “This Ordinance applies to an arbitration
under an arbitration agreement, whether or not the agreement is entered into in Hong Kong,
if the place of arbitration is in Hong Kong.” Hong Kong Arbitration Ordinance, §5(1)
(emphasis added).
589) See §2.03[C][1][a][ii].
590) E. Gaillard & J. Savage (eds.), Fouchard Gaillard Goldman on International Commercial
Arbitration ¶103 (1999) (such agreements may constitute “fraud against the law”). This
criticism parallels some U.S. judicial authority, refusing to apply the New York Convention
to agreements to arbitrate a purely domestic dispute between two U.S. parties outside the
arbitral seat. See §2.03[C][1][a][ii](2); §2.03[C][2][b][v].
591) See §2.03[C][1][a][ii](2); §2.03[C][2][b][v].
592) For example, if insurance companies agree to arbitrate in London, Bermuda, or New York,
or maritime companies in London, New York, Singapore, or Hamburg.
593) For example, if companies with Latin American origins, ownership connections, or
operations agree to arbitrate in Madrid, Miami, or Mexico City.
594) E. Gaillard & J. Savage (eds.), Fouchard Gaillard Goldman on International Commercial
Arbitration ¶103 (1999). A number of states have omitted Article 1(3), which permits parties
to contract into the Model Law. See, e.g., German ZPO, §1025; Ontario International
Commercial Arbitration Act, §2(3); Senegalese Code of Civil Procedure, Arts. 819-27.
595) See §2.03[C][2][a].
596) See §1.04[B]. Likewise, some U.S. judicial decisions come close to permitting parties to
“contract into” the U.S. FAA, by applying the Act by analogy to mediation, conciliation and
expert determination agreements. See §2.02[C][2][b]-§2.02[C][2][c].
597) See §2.03[C][2][b].
598) See §2.03[C][2][b][v].
599) See §1.04[B][1][e][ii]; U.S. FAA, 9 U.S.C. §§1-16.
600) See §1.04[B][1][e]; U.S. FAA, 9 U.S.C. §§201-208 (implementing New York Convention), §§301-
306 (implementing Inter-American Convention).
601) U.S. FAA, 9 U.S.C. §202 (emphasis added). See also §1.04[B][1][e]; §2.03[C][1][a][ii](2). Section
202’s “reasonable relationship” standard was – for better or worse – based on §1-105 of the
Uniform Commercial Code, dealing with choice-of-law clauses. See §2.03[C][2][b][v]. Section
1-105 was subsequently amended, to relax its “reasonable relationship” requirement, after
enactment of §202. See §19.04[D][4].
602) See N. Motors, Inc. v. Knudsen, 2011 WL 2552573, at *2 (E.D. Mo.) (“While [the language in 9
U.S.C. §202] clearly sets forth a class of agreements that is exempt from the New York
Convention, it does not provide an inclusive definition of agreements to which the New
York Convention applies”).

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 603) See, e.g., Brittania-U Nigeria, Ltd v. Chevron USA, Inc., 866 F.3d 709, 713 (5th Cir. 2017)
(reasonable relationship to foreign state, even where all parties are U.S. citizens: “The
disputed transaction and related written arbitration provisions involve property located
abroad and envisage performance abroad. … Furthermore, the arbitration provision
provides for arbitration to occur in London, and the United Kingdom is a signatory to the
Convention”); Suazo v. NCL (Bahamas), Ltd, 822 F.3d 543, 546 (11th Cir. 2016) (arbitration will
be considered international if it “(1) involves property located abroad, or (2) envisages
performance or enforcement abroad, or (3) has some other reasonable relation with one or
more foreign states”); S&T Oil Equip. & Mach., Ltd v. Juridica Invs. Ltd, 456 F.App’x 481, 484
(5th Cir. 2012) (reasonable relation to a foreign state because performance of contract
abroad and legal relationship involved foreign property); Shenzhen Zongheng Domain
Network Co., Ltd v. Amazon.Com Servs. LLC, 2023 WL 4993662, at *9 (S.D.N.Y.) (“Arbitral
awards are considered ‘entirely domestic’ when (1) ‘both parties are citizens of the United
States’ and (2) ‘the legal relationship giving rise to the arbitration ‘involves neither
property located abroad, nor envisages performance or enforcement abroad, nor has some
other reasonable relation with one or more foreign states’”); Nomanbhoy v. Vahanvaty, 2011
WL 6736052, at *4 (N.D. Ill.) (Convention applies only when legal relationship between
parties has a significant foreign element (e.g., performance abroad or property held
abroad, not just incidental business dealings); fact that award was made in foreign country
does not satisfy requirements of Convention and §202 of FAA); Tricon Energy, Ltd v. Vinmar
Int’l, Ltd, 2011 WL 4424802, at *6 (S.D. Tex.) (under §202 of FAA, New York Convention and
second chapter of FAA apply to shipping contract between two U.S. parties, providing for
discharge of goods at non-U.S. port); Argentina v. BG Group plc, 715 F.Supp.2d 108, 120
(D.D.C. 2010) (“Given that Congress plainly intended for the New York Convention to cover
certain arbitral awards issued in matters involving two domestic parties, it would be
nonsensical for this Court to conclude that the Award – which was issued in a dispute
involving two foreign parties, a foreign treaty, and a foreign investment – falls outside the
reach of a treaty that was ratified for the purpose of recognizing and enforcing foreign
arbitral awards”) (emphasis in original), rev’d on other grounds, 665 F.3d 1363 (D.C. Cir.
2012); Access Info. Mgt of Haw., LLC v. Shred-It Am., Inc., 2010 WL 4642045, at *5 (D. Haw.)
(legal relationship out of which Franchise Agreement arose had no “important foreign
element”: party could not confer a foreign element on legal relationship by unilaterally
deciding to perform its obligations abroad); Coastal States Trading, Inc. v. Zenith
Navigation, SA, 446 F.Supp. 330, 341 (S.D.N.Y. 1977) (applying §202, incorrectly, to hold that
arbitration agreement between U.S. and Panamanian company for shipment of oil from
England to United States was not non-domestic); Fuller Co. v. Compagnie des Bauxites de
Guinée, 421 F.Supp. 938, 941 (W.D. Pa. 1976).
604) This is also consistent with the UNCITRAL Model Law’s definition of “international” and with
the scope of the Geneva Protocol. See §1.01[C][1]; §2.03[B][1] & §2.03[B][2][a].

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 605) See, e.g., Gulfstream Aerospace Corp. v. Oceltip Aviation 1 Pty Ltd, 31 F.4th 1323, 1327 (11th Cir.
2022) (Convention applies because award concerned contract for sale of an aircraft
between an Australian company and a U.S. company); McDonnel Group, LLC v. Great Lakes
Ins. SE, 923 F.3d 427, 433 n.8 (5th Cir. 2019) (Convention applies to arbitration agreement
because “the [i]nsurers are not American citizens”); Lim v. Offshore Specialty Fabricators,
Inc., 404 F.3d 898, 903 (5th Cir. 2005) (“The Convention applies to international arbitration
clauses when,” among other facts, “a party to the agreement is not an American citizen”);
Francisco v. Stolt Achievement MT, 293 F.3d 270, 272-73 (5th Cir. 2002) (same); Indus. Risk
Insurers v. MAN Gutehoffnungshütte GmbH, 141 F.3d 1434, 1441 (11th Cir. 1998); Bergesen v.
Joseph Muller Corp., 710 F.2d 928, 932 (2d Cir. 1983) (Convention applies to arbitration
agreement between two non-U.S. parties: “involving parties domiciled or having their
principal place of business outside the enforcing jurisdiction”); Ledee v. Ceramiche Ragno,
684 F.2d 184, 186-87 (1st Cir. 1982) (Convention applies to arbitration agreement involving
non-U.S. party); Shenzhen Zongheng Domain Network Co., Ltd v. Amazon.Com Servs. LLC,
2023 WL 4993662, at *9 (S.D.N.Y.) (“Courts in this district have consistently held that if one
party is a foreign citizen, the arbitration agreement is not ‘entirely domestic’ and
therefore, the dispute falls under the New York Convention”); Nat’l Resident Matching
Program v. Alashry, 2018 WL 4623576, at *3 (D.D.C.) (“The award at issue here is not ‘entirely
domestic’ because … Dr. Alashry is a citizen of Egypt. As such, the plain language of the New
York Convention expressly embraces the award”); TRAF Intercontinental Elektronik-Handels
GmbH v. Sonocine, Inc., 2018 WL 3058859, at *3 (D. Nev.) (“[A]rbitral awards involving a
United States citizen and a citizen of another Party-State to the Convention qualif[y] as a
nondomestic award”); Glencore Ltd v. Degussa Eng’d Carbons LP, 848 F.Supp.2d 410, 422
(S.D.N.Y. 2012) (Convention applies to arbitration agreement involving Swiss party); Nanda
v. Atul Nanda & Dibon Solutions Inc., 2012 WL 2122181, at *4 (N.D. Tex.) (Convention applies
to award in arbitration between two Indian citizens domiciled in the United States);
Rossignol v. Tillman, 2011 WL 2461861 (E.D. La.) (Convention applies to arbitration
agreement involving party based in London); Mosqueda v. Offshore Specialty Fabricators,
2010 WL 1416786 (S.D. Tex.); LaPine v. Kyocera Corp., 2008 WL 2168914, at *4 (N.D. Cal.)
(Convention applies to award in arbitration between U.S. and Japanese party, even though
award was made in U.S. under California law).
606) See §2.03[C][2][b][iv].
607) See, e.g., Shenzhen Zongheng Domain Network Co., Ltd v. Amazon.Com Servs. LLC, 2023 WL
4993662, at *9-10 (S.D.N.Y.) (Convention applies because petitioner’s principal place of
business was in China); Jiakeshu Tech. Ltd. v. Amazon.com Servs., LLC, 2023 WL 4106275, at
*3-4 (S.D.N.Y.) (Convention applies to award because one party was a Hong Kong
corporation with its principal place of business in China); VVG Real Estate Invs. v.
Underwriters of Lloyd’s, London, 317 F.Supp.3d 1199 (S.D. Fla. 2018) (Convention applies to
arbitration agreement because portion of insurance policy was subscribed to by syndicate
owned, organized and based in U.K.); Outokumpu Stainless USA LLC v. Converteam SAS, 2017
WL 401951, at *6 (S.D. Ala.) (“[W]hile [parties] are American corporations, they are both
subsidiaries of foreign parent corporations, … the planning phase for [construction]
appears to have occurred in Germany and the Supply Agreements called for … committee
meetings to be held in Germany and France”); Glencore Ltd v. Degussa Eng’d Carbons LP,
848 F.Supp.2d 410, 422 (S.D.N.Y. 2012) (Convention applies to arbitration agreement
because one party was Swiss corporation with principal place of business in Switzerland);
ChampionsWorld, LLC v. U.S. Soccer Fed’n, Inc., 890 F.Supp.2d 912, 926-27 (N.D. Ill. 2012)
(“[W]hile the arbitration was conducted in New York, the award was rendered in
Switzerland,” and “[foreign party] was a party to the [contract] that triggered the
arbitration, and did participate in the … arbitration”); N. Motors, Inc. v. Knudsen, 2011 WL
2552573, at *3 (E.D. Mo.) (defendant’s Missouri domicile, rather than Danish nationality,
determined his citizenship for purposes of §202 and made award domestic); Colo. Mills LLC
v. Sunrich, LLC, 2010 WL 1413173, at *1 (D. Colo.) (arbitration can be non-domestic if party is
foreign-owned). Compare Bamberger Rosenheim, Ltd v. OA Dev., Inc., 862 F.3d 1284, 1287
(11th Cir. 2017) (“Arbitral awards are non-domestic ‘when one of the parties to the
arbitration is domiciled or has its principal place of business outside of the United
States’”) (quoting Indus. Risk Insurers v. MAN Gutehoffnungshütte GmbH, 141 F.3d 1434, 1441
(11th Cir. 1998)); Commodities & Minerals Enter. Ltd v. CVG Ferrominera Orinoco, CA, 2018 WL
4583484, at *3 (S.D. Fla.) (“The Partial Final Award at issue in this case is subject to
enforcement under the New York Convention as it involves a non-domestic award because
it is between two parties domiciled and having their principle place of business outside of
the United States”); Nanda v. Atul Nanda & Dibon Solutions Inc., 2012 WL 2122181, at *4 (N.D.
Tex.) (award in arbitration between two Indian citizens domiciled in United States was
non-domestic award under §202).

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 608) See, e.g., Brittania-U Nigeria, Ltd v. Chevron USA, Inc., 866 F.3d 709, 713 (5th Cir. 2017)
(reasonable relationship to foreign state, regardless whether all parties were U.S. citizens,
because “[t]he disputed transaction and related written arbitration provisions involve
property located abroad and envisage performance abroad”); Alberts v. Royal Caribbean
Cruises, Ltd, 834 F.3d 1202, 1205 (11th Cir. 2016) (Convention applied because “contract
envisaged performance abroad because [party] worked on a cruise ship that traveled in
international waters to foreign ports”); S&T Oil Equip. & Mach., Ltd v. Juridica Invs. Ltd, 456
F.App’x 481, 484 (5th Cir. 2012) (commercial relationship between two U.S. nationals had
reasonable relation with one or more foreign states (regardless of parties’ citizenship); one
party performed abroad by wiring funds from Guernsey and held property abroad in form
of collateral in Romanian company); Freudensprung v. Offshore Tech. Servs., Inc., 379 F.3d
327, 340-41 (5th Cir. 2004) (Convention applied “because agreement at issue, albeit
between two U.S. Citizens, … ‘envisaged performance abroad’ – the performance of
pipefitting service on WWAI’s barges in West Africa”); Lander Co. v. MMP Invs., Inc., 107 F.3d
476, 482 (7th Cir. 1997); Salzgitter Mannesmann Int’l USA Inc. v. Sun Steel Co., LLC, 2022 WL
2292878, at * 11 (S.D. Tex.) (contract between two U.S. companies which required one party
to purchase steel from company in Canada constituted a reasonable relation with foreign
state); LGC Holdings, Inc. v. Julius Klein Diamonds, LLC, 238 F.Supp.3d 452, 460 (S.D.N.Y. 2017)
(“Although the parties are New York citizens and the property at issue consists of
membership interests in New York limited liability companies, the ‘relationship’ between
the parties plainly ‘involve[d] property located abroad’ and ‘envisage[d] performance
abroad’”); Jacada (Euro.), Ltd v. Int’l Mktg Strategies, Inc., 255 F.Supp.2d 744 (W.D. Mich.
2003) (applying FAA and Convention to arbitral award where performance of contract was
intended to occur abroad and one party was non-U.S. citizen).

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 609) See Freudensprung v. Offshore Tech. Servs., Inc., 379 F.3d. 327 (5th Cir. 2004) (employment
contract for offshore oil and gas project in Nigerian waters envisaged performance abroad).
See also Rutledge v. NCL (Bahamas) Ltd, 2015 WL 458133 (S.D. Fla.); Johnson v. Norwegian
Cruise Line (Bahamas) Ltd, 163 F.Supp.3d 338 (E.D. La. 2016); Odom v. Celebrity Cruises, Inc.,
2011 WL 10636151 (S.D. Fla.). But see Armstrong v. NCL (Bahamas) Ltd, 998 F.Supp.2d 1335
(S.D. Fla. 2013); Matabang v. Carnival Corp., 630 F.Supp.2d 1361 (S.D. Fla. 2009); Ensco
Offshore Co. v. Titan Marine LLC, 370 F.Supp.2d 594 (S.D. Tex. 2005); Schisel-Meslin, Sinking
Seaman’s Claims: The Perils of Arbitration to Seamen’s Rights and the Second Look Doctrine’s
Failure to Rescue Them, 92 Tul. L. Rev. 1147 (2018).
610) Alberts v. Royal Caribbean Cruises, Ltd, 834 F.3d 1202, 1203-04 (11th Cir. 2016). See also
Lamothe, Cleaning Up the Mess: The Eleventh Circuit Offers Insight into §202 of the New York
Convention by Defining “Performance Abroad”, 41 Tul. Mar. L.J. 627 (2017); Savini, Plain-
Meaning: A-Broad Investigation, 46 Ga. J. Int’l & Comp. L. 281 (2017).
611) Lander Co. v. MMP Invs., Inc., 107 F.3d 476 (7th Cir. 1997). See also L. Shore et al. (eds.),
International Arbitration in the United States 556 (2017) (“The U.S. has adopted a broad
definition of ‘non-domestic awards,’ thus expanding the Convention’s scope of application
in U.S. courts”).
612) Lander, 107 F.3d at 482.
613) Indus. Risk Insurers v. MAN Gutehoffnungshütte GmbH, 141 F.3d 1434, 1441 (11th Cir. 1998).
See also Beijing Shougang Mining Inv. Co. v. Mongolia, 11 F.4th 144, 159 (2d Cir. 2021)
(“[A]wards are ‘nondomestic’ on account of their connections with a foreign legal
framework”); Mitchell v. Frattini, 2022 WL 17157027, at *4 (S.D.N.Y.).
614) Id. at 1434. See also Privacy-Assured Inc. v. AccessData Corp. Ltd, 2015 WL 1868757, at *2 n.1
(D. Utah).
615) Bergesen v. Joseph Muller Corp., 710 F.2d 928 (2d Cir. 1983). See also Beijing Shougang Mining
Inv. Co. v. Mongolia, 11 F.4th 144, 159 (2d Cir. 2021); Mitchell v. Frattini, 2022 WL 17157027, at
*4 (S.D.N.Y.).
616) Id. at 932. See also §22.02[E][1][a][ii](3).
617) See, e.g., Beijing Shougang Mining Inv. Co. v. Mongolia, 11 F.4th 144, 159 (2d Cir. 2021) (“Award
at issue qualifies as ‘nondomestic’ as parties are all non-U.S. citizens disputing with a
foreign sovereign over investments made in the territory of that foreign sovereign”); S&T Oil
Equip. & Mach., Ltd v. Juridica Invs. Ltd, 456 F.App’x 481 (5th Cir. 2012); Lim v. Offshore
Specialty Fabricators, Inc., 404 F.3d 898, 903 (5th Cir. 2005) (“The Convention applies to
international arbitration clauses when,” among other facts, “‘a party to the agreement is
not an American citizen’”) (quoting Francisco v. Stolt Achievement MT, 293 F.3d 270, 272-73
(5th Cir. 2002)); Smith/Enron Cogeneration LP Inc. v. Smith Cogeneration Int’l, Inc., 198 F.3d
88, 92-94 (2d Cir. 1999); Yusuf Ahmed Alghanim & Sons, WLL v. Toys “R” Us, Inc., 126 F.3d 15, 19
(2d Cir. 1997) (“The Convention’s applicability in this case is clear. The dispute giving rise to
this appeal involved two non-domestic parties and one United States corporation, and
principally involved conduct and contract performance in the Middle East. Thus, we
consider the arbitral award leading to this action a non-domestic award and thus within
the scope of the Convention”); Jain v. de Mere, 51 F.3d 686, 689 (7th Cir. 1995) (“Chapter 2
mandates that any commercial arbitral agreement, unless it is between two United States
citizens, involves property located in the United States, and has no reasonable
relationship with one or more foreign states, falls under the Convention”); Ministry of Def. of
Iran v. Gould Inc., 887 F.2d 1357, 1362 (9th Cir. 1989) (New York Convention applies when
arbitral award “(1) … arise[s] out of a legal relationship (2) which is commercial in nature
and (3) which is not entirely domestic in scope;” award was “obviously not domestic in
nature because Iran [was] one of the parties to the agreement”); Ledee v. Ceramiche Ragno,
684 F.2d 184, 186-87 (1st Cir. 1982) (Chapter 2 of FAA requires enforcement of an arbitration
agreement when one of parties to agreement is not a U.S. citizen); Glencore Ltd v. Degussa
Eng’d Carbons LP, 848 F.Supp.2d 410, 422 (S.D.N.Y. 2012); Nanda v. Atul Nanda & Dibon
Solutions Inc., 2012 WL 2122181 (N.D. Tex.); LaPine v. Kyocera Corp., 2008 WL 2168914 (N.D.
Cal.); Jacada (Euro.), Ltd v. Int’l Mktg Strategies, Inc., 255 F.Supp.2d 744 (W.D. Mich. 2003).

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 618) See, e.g., Certain Underwriters at Lloyd’s London v. Argonaut Ins. Co., 500 F.3d 571 (7th Cir.
2007); Jacada Ltd v. Int’l Mktg Strategies, 401 F.3d 701, 707 (6th Cir. 2005) (“[T]he citizenship
of the parties, the location of property involved in the dispute, where the agreement was
to be performed or enforced, or whether the award contains another reasonable relation
with a foreign country … all impact whether an award is foreign or domestic”), rev’d on
other grounds, 552 U.S. 576 (U.S. S.Ct. 2008); Ledee v. Ceramiche Ragno, 684 F.2d 184, 187 (1st
Cir. 1982); Jiakeshu Tech. Ltd v. Amazon.com Servs., LLC, 2023 WL 4106275, at *4 (S.D.N.Y.)
(one partY was “a Hong Kong corporation whose principal place of business is China.
Accordingly, ‘federal subject matter jurisdiction exist[s] under the Convention’ because the
award does ‘not simply arise out of [a legal] relationship which is entirely between citizens
of the United States’”); Nanda v. Atul Nanda & Dibon Solutions Inc., 2012 WL 2122181, at *2-3
(N.D. Tex.); Astra Oil Trading NV v. Petrobras Am. Inc., 718 F.Supp.2d 805, 808 (S.D. Tex. 2010),
rev’d on other grounds, 2010 WL 3069793 (S.D. Tex. 2010); DaPuzzo v. Globalvest Mgt Co., LP,
263 F.Supp.2d 714, 724 (S.D.N.Y. 2003).
There could conceivably be cases where U.S. and non-U.S. nationals, or only non-U.S.
nationals, agreed to arbitrate a purely domestic U.S. transaction abroad. If so, the analysis
discussed below regarding arbitrations between U.S. nationals would apply. See §2.03[C][2]
[b][v]-§2.03[C][2][b][vi].
619) See, e.g., Rau, The New York Convention in American Courts, 7 Am. Rev. Int’l Arb. 213, 248
(1996) (criticizing Jones: “clear from the situs of the arbitration that the parties’ relationship
‘envisaged enforcement abroad’”); Restatement of the U.S. Law of International Commercial
and Investor-State Arbitration §1.4 Reporters’ Note b(ii) (2023) (describing Rau critique as
“persuasive[]”). Contrary to these suggestions, the relevant inquiry under §202 is whether
the parties’ underlying commercial relationship envisages (commercial) performance
abroad. If Congress had wanted the Convention to apply to all agreements to arbitrate
abroad, it could readily have done so, as Article 1(2) of the Model Law does. Section 202
conspicuously omits such language.
620) U.S. FAA, 9 U.S.C. §202 (emphasis added).
621) See §1.02[B][6].
622) See §2.03[C][2][b][i].
623) See §19.04[D][4].
624) Despite this, as discussed below, a number of U.S. courts have concluded that the
Convention does not require giving effect to arbitration agreements, specifying a foreign
seat, involving consumers or workers. See §2.03[C][1][a][ii](2); §2.03[C][2][b][v].
625) See, e.g., Smith/Enron Cogeneration LP Inc. v. Smith Cogeneration Int’l, Inc., 198 F.3d 88 (2d
Cir. 1999) (in considering application of New York Convention to arbitration agreement, fact
that party was citizen of non-Contracting State and dispute’s subject matter was located in
non-Contracting State was not controlling when seat of arbitration was in United States:
“The focus of … the Convention is not on the nationality of the party seeking to enforce an
award but on the situs of the arbitration. Indeed, arbitration awards rendered by panels
sitting in contracting countries have been confirmed consistently when the plaintiff is a
national of a country which has not acceded to the Convention”); Fuller Co. v. Compagnie
des Bauxites de Guinée, 421 F.Supp. 938, 942-43 (W.D. Pa. 1976) (agreement between U.S.
parties to arbitrate dispute bearing connection to Guinea, where arbitration was originally
sited in Switzerland and parties later agreed to move arbitration to Pittsburgh,
Pennsylvania, within ambit of Convention).
626) H.R. Rep. No. 91-1181, 91st Cong., 2d Sess. 2 (1970), reprinted in 1970 U.S. Code Cong. & Ad.
News 3601, 3603 (emphasis added).
627) Foreign Arbitral Awards, S. Rep. No. 91-702, 91st Cong., 2d Sess. 6, Appendix (Statement of
Richard D. Kearney) (1970) (“[I]t was necessary to modify the definition of commerce to
make it quite clear that arbitration arising out of relationships in interstate commerce
remains under the original Arbitration Act and is excluded from the operation of the
proposed Chapter 2”).
628) See §2.03[C][2][a].
629) Wilson v. Lignotock U.S.A. Inc., 709 F.Supp. 797 (E.D. Mich. 1989).

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 630) See, e.g., Jones v. Sea Tow Servs. Freeport NY, Inc., 30 F.3d 360 (2d Cir. 1994); Shilmann Rocbit,
LLC v. Am. Blasting Consumables, Inc., 2016 WL 5843880, at *6 (S.D. W. Va.) (“In determining
what is sufficient for a ‘reasonable relationship,’ courts have held that two domestic
parties whose only international connection is merely an enforcement provision abroad is
insufficient for enforcement under the Convention”); Ensco Offshore Co. v. Titan Marine LLC,
370 F.Supp.2d 594, 601 (S.D. Tex. 2005) (refusing to apply Convention to arbitration
agreement between two U.S. parties providing for arbitration in London under Lloyd’s
Salvage Arbitrators form); Reinholtz v. Retriever Marine Towing & Salvage, 1994 AMC 2981
(S.D. Fla.), aff’d, 46 F.3d 71 (11th Cir. 1995); Brier v. Northstar Marine, Inc., 1992 WL 350292, at
*8 (D.N.J.); Coastal States Trading, Inc. v. Zenith Navigation, SA, 446 F.Supp. 330, 341 (S.D.N.Y.
1977). See also Bethlehem Steel Corp. v. Songer Corp., 1992 WL 110735, at *1 (S.D.N.Y.) (“[T]he
Convention … was not intended to confer jurisdiction on the federal courts over disputes
between United States citizens solely because that dispute may have some relation to a
contract one of the parties has with a foreign corporation”).
631) See U.S. FAA, 9 U.S.C. §202; Beiser v. Weyler, 284 F.3d 665, 666 n.2 (5th Cir. 2002). See also
Bergesen v. Joseph Muller Corp., 710 F.2d 928, 932 (2d Cir. 1983) (“We adopt the view that
awards ‘not considered as domestic’ denotes awards which are subject to the Convention
not because made abroad, but because made within the legal framework of another
country, e.g., pronounced in accordance with foreign law or involving parties domiciled or
having their principal place of business outside the enforcing jurisdiction. We prefer this
broader construction because it is more in line with the intended purpose of the treaty,
which was entered into to encourage the recognition and enforcement of international
arbitration awards”); Salzgitter Mannesmann Int’l USA Inc. v. Sun Steel Co., LLC, 2022 WL
2292878, at *11 (S.D. Tex.) (U.S. seated arbitration between two U.S. companies considered
nondomestic because one party was required to purchase steel from Canadian company,
and that party’s interaction with foreign state was not a random or fortuitous act);
Shanghai Foodstuffs Imp. & Exp. Corp. v. Int’l Chem., Inc., 2004 WL 213019, at *1-2 (S.D.N.Y.);
§2.03[C][2][b][v].
632) See §2.03[C][1][a][ii](2).
633) See id.
634) See §5.06[C]-§5.06[D]; §26.05[C][9].
635) See §2.03[C][1][a][i] & §2.03[C][1][a][iii].
636) On the other hand, an “international” arbitration agreement could also include all
agreements to arbitrate outside the judicial enforcement forum, even if involving only a
domestic dispute between local nationals. This would leave the judicial enforcement
forum free to apply nonarbitrability or public policy exceptions to the arbitration
agreement, but not exclude the agreement altogether from the scope of the Convention.
See also §2.03[C][1][a][i] & §2.03[C][1][a][iii]. A more nuanced view would include
agreements to arbitrate domestic disputes, between local nationals, abroad where there
was a legitimate basis for doing so (e.g., a market practice or cultural affinity).
637) See §1.04[B].
638) See M. Domke, G. Wilner & L. Edmonson, Domke on Commercial Arbitration, §7.6 (3d ed. &
Update 2023).
639) The French “objective” approach to the question of internationality has been adopted by
Lebanon and the Ivory Coast, as well as Portugal. E. Gaillard & J. Savage (eds.), Fouchard
Gaillard Goldman on International Commercial Arbitration ¶¶107-26 (1999). See also Dell
Computer Corp. v. Union des Consommateurs, 2007 SCC 34, ¶49 (Canadian S.Ct.).
640) Article 1492 of the previous version of the French New Code of Civil Procedure was similar
to Article 1504 of the revised Code. See E. Gaillard & J. Savage (eds.), Fouchard Gaillard
Goldman on International Commercial Arbitration ¶¶107-26 (1999).
641) French Code of Civil Procedure, Art. 1504. See Carducci, The Arbitration Reform in France:
Domestic and International Arbitration Law , 28 Arb. Int’l 125, 147-48 (2012); Pierce, Born &
Scherer, Revision to French Arbitration Law Arrives, N.Y. L.J. S5, S5 (2011) (“Article 1504
defines international arbitration as one that involves ‘the interests of international
commerce.’ This is the same definition as that contained in the old law (Article 1492). Given
that this definition has often been criticized for being tautological and for giving too little
guidance to the courts, it is notable that the French legislature did not seek to amend it in
the new law”); Schwartz, The New French Arbitration Decree: The Arbitral Procedure, 2011
Paris J. Int’l Arb. 349, 351 n.10 (“[T]he 2011 Decree … broadly defines an international
arbitration as an arbitration that ‘implicates international commercial interests’”).
642) Carducci, The Arbitration Reform in France: Domestic and International Arbitration Law , 28
Arb. Int’l 125, 148 (2012); Delaume, What Is An International Contract? An American and A
Gallic Dilemma, 28 Int’l & Comp. L.Q. 258 (1979).

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 643) See, e.g., Judgment of 30 June 2016, Groupe Bernard Tapie v. CDR Créances , 2016 Rev. Arb.
1123 (French Cour de Cassation Civ. 1) (transaction involving sale of shares in German
company to companies in other states is international); Judgment of 26 January 2011, 2011
Rev. Arb. 284 (French Cour de Cassation Civ. 1) (transaction involving movement of funds
across borders is international); Judgment of 12 May 2010, El Assidi v. Nest , 2010 Rev. Arb.
391 (French Cour de Cassation Civ. 1) (transaction producing movement of merchandise and
payment across borders); Judgment of 21 May 1997, Renault v. V 2000 , 1997 Rev. Arb. 537
(French Cour de Cassation Civ. 1) (sale of automobiles); Judgment of 17 May 1927, Pélissier du
Besset v. Algiers Land & Warehouse Co., 1927 Bull. Civ. No. 77, 163 (French Cour de Cassation
Civ. 1) (transaction will be international if it produces movement across borders with
reciprocal consequences in more than one country).
644) Judgment of 14 March 1989, Murgue Seigle v. Coflexip , 1991 Rev. Arb. 345, 355 (Paris Cour
d’Appel). See also Judgment of 30 June 2016, Groupe Bernard Tapie v. CDR Créances, 2016
Rev. Arb. 1123, 1128 (French Cour de Cassation Civ. 1) (“[T]he characterization of arbitration
is determined according to the nature of the economic relations at the origin of the
dispute … internationality of arbitration is based on an economic definition according to
which it is sufficient that the dispute submitted to the arbitrator relates to a transaction
which does not economically take place in a single State, irrespective of the status or
nationality of the parties, the law applicable to the merits of the arbitration, or the seat of
the arbitral tribunal”); Judgment of 26 January 2011, 2011 Rev. Arb. 284, 285 (French Cour de
Cassation Civ. 1) (“[T]he international nature of arbitration refers to an economic definition
according to which it is sufficient that a dispute submitted to the arbitrator relate to a
transaction which does not take place economically in one State, while the nationality of
the parties, the law applicable to the contract or the arbitration, and the place of
arbitration are irrelevant”; transaction was international because it “involved a movement
of funds [from Respondent] across the borders”); Judgment of 8 October 2009, 2009 Rev. Arb.
922 (French Cour de Cassation Civ. 1); Judgment of 29 May 2018, Elcir v. SA Bouygues
Bâtiment Ile de France , 2018 Rev. Arb. 528, 529 (Paris Cour d’Appel) (“[I]t follows from the
definition [of Article 1504] that arbitration is international when the dispute submitted to
the arbitrator relates to a transaction which is not settled economically in a single State,
irrespective of the status or nationality of the parties, the law applicable to the substance
of the dispute or to the procedure and the seat of the arbitral tribunal; this qualification
does not depend on the will of the parties and it is therefore irrelevant whether the parties
have referred in the arbitration agreement to the provisions of the Code of Civil Procedure
relating to domestic arbitration”); Judgment of 7 October 2014, Sabatino v. Animated
Ventures , 2014 Rev. Arb. 1024 (Paris Cour d’Appel) (“It follows from the terms of Article 1504
… that the internationality of arbitration is based on an economic definition according to
which it is sufficient that the dispute submitted to the arbitrator relates to a transaction
that does not economically take place in a single State, irrespective of the status or
nationality of the parties, the law applicable to the merits or to the arbitration, or the seat
of the arbitral tribunal”); Judgment of 11 June 2009, 2009 Rev. Arb. 652 (Paris Cour d’Appel);
Carducci, The Arbitration Reform in France: Domestic and International Arbitration Law , 28
Arb. Int’l 147-48 (2012) (“French arbitration law has clearly adopted an ‘economic’
definition, wherein arbitration is ‘international’ when it involves international trade, or
more precisely, ‘met en cause des intérêts du commerce international.’ Consequently, the
French law regime for international arbitration applies as to a dispute submitted to
arbitration concerning a transaction which is not economically limited within the
boundaries of a country”); Gaillard & de Lapasse, Commentaire Analytique du Décret du 13
Janvier 2011 Portant Réforme du Droit Français de l’Arbitrage, 2011 Paris J. Int’l Arb. 263, ¶74;
C. Seraglini & J. Ortscheidt, Droit de l’Arbitrage Interne et International ¶¶34-36 (2013).
645) Judgment of 13 March 2007, 2007 Rev. Arb. 498 (French Cour de Cassation Civ. 1); Judgment of
29 May 2018, Elcir v. SA Bouygues Bâtiment Ile de France , 2018 Rev. Arb 528 (Paris Cour
d’Appel). See also Dell Computer Corp. v. Union des Consommateurs, [2007] SCC 34, ¶49
(Canadian S.Ct.) (“The matter of international trade test is different from connecting factors
such as the parties’ place of residence or the place where the obligations are performed.
Thus, a contractual legal situation may have foreign elements without involving any
matters of extraprovincial or international trade; in such a case … the resulting arbitration
will not be considered an international arbitration”).
646) See §1.02[B].
647) See §1.02[B][1].
648) See §2.03[C][2][a]; UNCITRAL Model Law, Art. 1(3).
649) See §2.03[C][2][b]; U.S. FAA, 9 U.S.C. §202.
650) See §2.03[C][1][b]; European Convention, Art. I(1)(a).
651) See §1.01[C][1]; §2.03[C]; Geneva Protocol, Art. 1.

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 652) English Arbitration Act, 1996, §§1, 6; R. Merkin, Arbitration Law ¶1.22(a) (1991 & Update July
2023).
653) In this respect, the Act parallels the Model Law (and particularly Articles 1(2) and 8)). See
§2.03[C][2][a].
654) English Arbitration Act, 1996, §§2(1), (3).
655) Id. at §§9-11.
656) Id. at §2(2)(a).
657) Swiss Law on Private International Law, Art. 176(1). See Judgment of 4 October 2004, DFT
4C.172/2004 (Swiss Fed. Trib.); Judgment of 24 June 2002, 21 ASA Bull. 131, 132 (Swiss Fed.
Trib.) (2003).
658) B. Berger & F. Kellerhals, International and Domestic Arbitration in Switzerland ¶103 (4th ed.
2021); P. Lalive, J.-F. Poudret & C. Reymond, Le Droit de l’Arbitrage Interne et International en
Suisse Art. 176, ¶3 (1989).
659) See Swiss Law on Private International Law, Art. 176(1); Ehrat, in S. Berti et al. (eds.),
International Arbitration in Switzerland Art. 176, ¶16 (2000); Patocchi & Jermini, in id. at Art.
194, ¶12.
660) Ehrat, in S. Berti et al. (eds.), International Arbitration in Switzerland Art. 176, ¶16 (2000).
661) For a decision addressing the time for determining the international character of an
arbitration agreement, see Judgment of 13 October 2000, XXVI Y.B. Comm. Arb. 1141 (Italian
Corte di Cassazione) (2001) (“The ‘international’ nature of a possible future arbitration must
be ascertained at the time of the conclusion of the contract”).
662) Italian Code of Civil Procedure, Art. 832 (“If on the date of signing the arbitration clause or
submission to arbitration at least one of the parties has its domicile or actual place of
business abroad, or if a substantial part of the obligations arising out of the relationship to
which the dispute refers must be performed abroad, the provisions of Chapter I to V of this
Title shall apply to arbitration in so far as they are not derogated from by this Chapter”);
Tampieri, International Arbitration and Impartiality of Arbitrators: The Italian Perspective, 18
J. Int’l Arb. 549 (2001). See also Belgian Judicial Code, 2013, Art. 1718 (“By an explicit
declaration in the arbitration agreement or by a later agreement, the parties may exclude
any application for the setting aside of an arbitral award, where none of them is a natural
person of Belgian nationality or a natural person having his domicile or normal residence
in Belgium or a legal person having its registered office, its main place of business or a
branch office in Belgium”). For revised Italian legislation, see Cutolo & Esposito, The Reform
of the Italian Arbitration Law , 24 J. Int’l Arb. 49, 51 (2007) (new statute abrogates specific
provisions concerning international arbitration and extends provisions for domestic
arbitrations to international arbitrations). See also Judgment of 13 October 2000, XXVI Y.B.
Comm. Arb. 1141, 1143-44 (Italian Corte di Cassazione) (2001) (arbitration is “international”
if a “substantial” (but not necessarily “predominant”) part of obligations are performed
abroad and if parties of different residences were involved: “the foreign habitual place of
residence or the foreign seat of the parties to the contract, at the time of concluding the
contract or the arbitral clause, is the first criterion for ascertaining the ‘international’
nature of the arbitration”).
663) Romanian Code of Civil Procedure, Art. 369.
664) See Portuguese Law on Voluntary Arbitration, Art. 49(1).
665) See §2.03[C][1][b].
666) Algerian Code of Civil and Administrative Procedure, Art. 458. See also Angola Law on
Voluntary Arbitration, Art. 40(1).
667) See also §2.03[C][1][a][iii]; §2.03[C][2][b][vi].
668) Where domestic parties agree to arbitrate a domestic dispute abroad for reasons of
expertise, culture, language, or the like, their agreements should also generally be
considered “international” and subject to international arbitration legislation. See §2.03[C]
[2][b][v].
669) See §2.04. See also Singapore International Arbitration Act, §15; Insigma Tech. Co. v. Alstom
Tech. Ltd, [2009] SGCA 24, ¶42 (Singapore Ct. App.) (“[T]he parties to an arbitration in
Singapore are free to adopt the arbitration rules of their choice to govern their arbitration.
… [T]heir choice of arbitration rules will be respected by Singapore law and be given the
fullest effect possible”).
670) See §2.04[B]. It is inconsistent with the approach in Switzerland. See §2.03[C][2][e].
671) See §2.04[B].
672) New York Convention, Art. II(1). The Geneva Protocol applied to “differences between
parties.” Geneva Protocol, Art. 1. See also A. van den Berg, The New York Arbitration
Convention of 1958 168 (1981) (“[T]here [must] be a dispute”); §2.02[C][1][b][ii].

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 673) European Convention, Art. I(1)(a).
674) UNCITRAL Model Law, Art. 7(1). See also U.S. FAA, 9 U.S.C. §1 (“controversies”); German ZPO,
§1029(1) (“disputes”); New Zealand Arbitration Act, Schedule 1, Art. 8(1) (court not required
to refer parties to arbitration if “there is not in fact any dispute between the parties with
regard to the matters agreed to be referred”); Russian International Arbitration Law, Art.
1(3) (“disputes”); Venezuelan Arbitration Law, Art. 5 (“controversies”). See also A. Samuel,
Jurisdictional Problems in International Commercial Arbitration 148 (1989); R. Merkin,
Arbitration Law ¶¶8.38-42 (1991 & Update July 2023); §2.02[C][1][b][ii].
675) See Case Concerning Application of the International Convention on the Elimination of All
Forms of Racial Discrimination (Georgia v. Russian Fed’n), Judgment on Preliminary
Objections of 1 April 2011, [2011] I.C.J. Rep. 70, ¶30 (I.C.J.) (“The Court recalls its established
case law on that matter, beginning with the frequently quoted statement by the Permanent
Court of International Justice in the Mavrommatis Palestine Concessions case in 1924: ‘A
dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests
between two persons.’ Whether there is a dispute in a given case is a matter for ‘objective
determination’ by the Court. ‘It must be shown that the claim of one party is positively
opposed by the other.’ The Court’s determination must turn on an examination of the facts.
The matter is one of substance, not of form. As the Court has recognized, the existence of a
dispute may be inferred from the failure of a State to respond to a claim in circumstances
where a response is called for. While the existence of a dispute and the undertaking of
negotiations are distinct as a matter of principle, the negotiations may help demonstrate
the existence of the dispute and delineate its subject-matter”); Case Concerning East Timor
(Portugal v. Australia), Judgment of 30 June 1995, [1995] I.C.J. Rep. 89, 100 (I.C.J.) (“For the
purpose of verifying the existence of a legal dispute in the present case, it is not relevant
whether the ‘real dispute’ is between Portugal and Indonesia rather than Portugal and
Australia. Portugal has, rightly or wrongly, formulated complaints of fact and law against
Australia which the latter has denied. By virtue of this denial, there is a legal dispute”);
Interpretation of the Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion of
30 March 1950 (First Phase), [1950] I.C.J. Rep. 65, 74 (I.C.J.) (“situation in which the two sides
hold clearly opposite views concerning the question of the performance or non-
performance of certain treaty obligations”); Burlington Res. Inc. v. Ecuador, Decision on
Jurisdiction in ICSID Case No. ARB/08/5 of 2 June 2010, ¶¶289, 320, 325 (“(i) a disagreement
between the parties on their rights and obligations, an opposition of interests and views, and
(ii) an expression of this disagreement, so that both parties are aware of the
disagreement”) (emphasis added).
676) Mavrommatis Palestine Concessions (Greece v. Great Britain), [1924] P.C.I.J. Series A, No. 2, 11
(P.C.I.J.) (emphasis added).
677) Texaco Overseas Petroleum Co. v. Libya, Preliminary Ad Hoc Award of 27 November 1975, 53
I.L.R. 389, 416 (1979).
678) Schreuer, What Is A Legal Dispute?, in I. Buffard & G. Hafner (eds.), International Law
Between Universalism and Fragmentation: Festschrift in Honour of Gerhard Hafner 959, 978
(2008) (“Arguments attempting to deny the existence of a dispute have hardly ever
succeeded. Therefore, an objection to jurisdiction based on the denial of a dispute
between the parties is not a promising strategy. Very little is required in the way of the
expression of opposing positions by the parties to establish a dispute. In particular, the
denial of the existence of a dispute by one party will be to no avail”).
679) See Quiborax SA v. Bolivia, Decision on Jurisdiction in ICSID Case No. ARB/06/2 of 27
September 2012, ¶54 (“At the jurisdictional stage, the Claimants must establish … that they
have a prima facie cause of action under the Treaty, that is that the facts they allege are
susceptible of constituting a breach of the Treaty if they are ultimately proven”); Micula v.
Romania, Decision on Jurisdiction and Admissibility in ICSID Case No. ARB/05/20 of 24
September 2008, ¶66 (“It is also common ground that the jurisdictional stage is not the
appropriate time to enter the merits of the case. … The Tribunal concurs with Claimant that
a tribunal need not go beyond determining whether the facts alleged by a claimant, if
established, are capable of constituting violations of the provisions that are invoked”);
Nat’l Grid plc v. Argentina, Ad Hoc Decision on Jurisdiction of 20 June 2006, ¶160 (“The
arguments advanced by the parties and the facts alleged by them show that a dispute
exists between them as to whether the protection due to the investor under the Treaty has
been violated and as to whether commitments were made to the investor under the laws of
the Argentine Republic that would give rise to a claim under the Treaty”); Zurich Australian
Ins. Ltd v. Cognition Educ. Ltd, [2014] NZSC 188 (N.Z. S.Ct.) (in determining whether dispute
existed, it was irrelevant that party might not have arguable defence to claim).

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 680) See Methanex N.Z. Ltd v. Kinugawa, [1998] 2 FC 583 (Canadian Fed. Ct.); Mitsui v. Egon
Oldendorff, [2003] BCSC 1478 (B.C. Sup. Ct.); Tai Hing Cotton Mill Ltd v. Glencore Grain
Rotterdam BV, [1996] 1 HKC 363 (H.K. Ct. App.); Fai Tak Eng’g Co. Ltd v. Sui Chong Constr. &
Eng’g Co. Ltd, [2009] HKDC 141 (H.K. Dist. Ct.); Tai-Ao Aluminium (Taishan) Co. Ltd v. Maze
Aluminium Eng’g Co. Ltd, [2006] HKCFI 220 (H.K. Ct. First Inst.); Owners of Sincere House v.
Sincere Co. Ltd, [2005] HKCU 625 (H.K. Lands Tribunal); Tommy C.P. Sze. & Co. v. Li & Fung
(Trading) Ltd, [2002] HKCFI 682 (H.K. Ct. First Inst.); Getwick Eng’rs Ltd v. Pilecon Eng’g Ltd,
[2002] HKCFI 189 (H.K. Ct. First Inst.); Joong & Shipping Co. v. Choi Chong-sick , XX Y.B. Comm.
Arb. 284 (H.K. High Ct. 1994) (1995); Fletcher Constr. NZ & S. Pac. Ltd v. Kiwi Co-op. Dairies Ltd,
Case No. CP 7/98 (Auckland High Ct. 1998) (where no good faith defense is sustained, parties
are not referred to arbitration); Kenya Oil Co. v. Kenya Petroleum Refineries Ltd, Civil Case
No. 782 (Nairobi High Ct. 2009) (refusing to appoint arbitrator, apparently on grounds that
there was no genuine dispute between parties). See also F. Bachand & F. Gélinas, The
Implementation and Application of the New York Arbitration Convention in Canada 13 (2014);
F. Bachand & F. Gélinas, The UNCITRAL Model Law After Twenty-Five Years: Global
Perspectives on International Commercial Arbitration 199 (2011).
681) Bank Am. Trust & Banking Corp. v. Trans-World Telecom Holdings Ltd , XXV Y.B. Comm. Arb.
683 (Cayman Islands Grand Ct. 1999) (2000).
682) English Arbitration Act, 1996, §9(4); R. Merkin, Arbitration Law ¶¶8.38-42 (1991 & Update July
2023).
683) Halki Shipping Corp. v. Sopex Oils Ltd [1998] 1 Lloyd’s Rep. 49 (QB) (English High Ct.), aff’d,
[1998] 1 Lloyd’s Rep. 465 (English Ct. App.).
684) Amec Civil Eng’g Ltd v. Secretary of State for Transp. [2005] EWCA Civ 291, ¶67 (English Ct.
App.) (“It follows that in the arbitration context it is possible and sensible to give to the
word ‘dispute’ a broad meaning in the sense that a dispute may readily be found or inferred
in the absence of an acceptance of liability, a fortiori because the arbitration process itself
is the best place to determine whether or not the claim is admitted or not”) (emphasis
added); Mayer Newman v. Al Ferro Commodities Corp. [1990] 2 Lloyd’s Rep. 290 (English Ct.
App.); Hayter v. Nelson Home Ins. Co. [1990] 2 Lloyd’s Rep. 265 (QB) (English High Ct.)
(rejecting suggestion that “if courts are to decide whether or not a claim is disputable, they
are doing precisely what the parties have agreed should be done by the private tribunal.
An arbitrator’s very function is to decide whether or not there is a good defence to the
claimant’s claims”); BAM Building Ltd v. UCD Prop. Dev. Co., [2016] IEHC 582, ¶24 (Dublin
High Ct.) (“It is not for the courts to inquire whether one party’s position under the dispute
is tenable or not, or whether there is a ‘real and genuine dispute’ to be referred to
arbitration. A decision on the merits of the parties’ disputes is one for the arbitrator to
make”).
685) See, e.g., Tai Hing Cotton Mill Ltd v. Glencore Grain Rotterdam BV, [1995] HKCA 626, ¶¶44-46
(H.K. Ct. App.) (party needs to make an “unequivocal admission as to liability and
quantum” in order to permit conclusion that no dispute exists) (citing Hayter v. Nelson
Home Ins. Co. [1990] 2 Lloyd’s Rep. 265, 268 (QB) (English High Ct.)); Mice Eng’g Ltd v. Johnson
Controls Hong Kong Ltd, [2022] HKCFI 2768, ¶32-35 (H.K. Ct. First Inst.); Zhan Jian E & T Dev.
Area Serv. Head Co. v. An Hau Co. Ltd, [1994] HKCFI 168, ¶18 (H.K. Ct. First Inst.); Guangdong
Agric. Co. v. Conagra Int’l (Far E.) Ltd, [1993] HKLR 113 (H.K. Ct. First Inst.); Durga Charan
Rautray v. Orissa, (2012) 12 SCC 513 (Indian S.Ct.).
686) See, e.g., Sumito v. Antig Inv. Pte Ltd, [2009] SGCA 41, ¶¶46, 49 (Singapore Ct. App.) (“Having
considered the development of the post-1996 position that a merely asserted dispute
suffices to warrant a stay of court proceedings without any inquiry into the genuineness or
merits of the defence, we unhesitatingly endorse the judge’s application of this approach
from Dalian and Halki. … [I]t is sufficient for a defendant to simply assert that he disputes
or denies the claim in order to obtain a stay of proceedings in favour of arbitration”);
Rinehart v. Welker, [2012] NSWCA 95, ¶130 (N.S.W. Ct. App.) (“Although at the time [the
appellant] had not formally responded to the claim, it could be reasonably anticipated
she would deny the allegations and in that sense there was a dispute”).

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 687) See, e.g., Sumito v. Antig Inv. Pte Ltd, [2009] SGCA 41, ¶59 (Singapore Ct. App.) (“The proper
analysis of a claim brought in spite of an arbitration agreement where there has been clear
and unequivocal admission by the defendant, therefore, is as an exception to the
scrupulous enforcement of arbitration agreements. This exception will only be made where
there has been a clear and unequivocal admission, and it can thus be said that there exists no
dispute mandatorily referable to arbitration”) (emphasis in original); Tai Hing Cotton Mill Ltd
v. Glencore Grain Rotterdam BV, [1995] HKCA 626 (H.K. Ct. App.); Fai Tak Eng’g Co. Ltd v. Sui
Chong Constr. & Eng’g Co. Ltd, [2009] HKDC 141 (H.K. Dist. Ct.); Owners of Sincere House v.
Sincere Co. Ltd, [2005] HKCU 625 (H.K. Lands Tribunal); Mice Eng’g Ltd v. Johnson Controls
Hong Kong Ltd, [2022] HKCFI 2768, ¶35 (H.K. Ct. First Inst.) (“[A] dispute exists unless there
had been a clear and unequivocal admission of liability and quantum”); Getwick Eng’rs Ltd
v. Pilecon Eng’g Ltd, [2002] HKCFI 189 (H.K. Ct. First Inst.); Leung Kwok Tim t/a Tim Yip Eng’g
Co. v. Builders Fed. (H.K.) Ltd, [2001] HKCFI 823 (H.K. Ct. First Inst.); F & D Bldg Servs. Eng’g Co.
Ltd v. Chevalier (E & M Contracting), [2001] 3 HKCFI 824 (H.K. Ct. First Inst.); P & O Nedlloyd
Ltd v. Wah Hing Seafreight (China) Co. Ltd, [1999] HKCU 1412 (H.K. Ct. First Inst.); Louis Dreyfus
Trading Ltd v. Bonarich Int’l (Group) Ltd, [1997] HKCFI 312 (H.K. Ct. First Inst.).
688) New York Convention, Art. II(1); Inter-American Convention, Art. 1 (“[A]ny differences that
may arise or have arisen between them with respect to a commercial transaction”);
European Convention, Art. I(1)(a) (“arbitration agreements concluded for the purpose of
settling disputes arising from international trade”); UNCITRAL Model Law, Art. 7(1) (“whether
contractual or not”); U.S. FAA, 9 U.S.C. §202 (“whether contractual or not”); Irish Arbitration
Act, §6 (adopting UNCITRAL Model Law); Chilean Arbitration Law, Art. 7. See also Larsen v.
Hawaiian Kingdom, Award in PCA Case No. 1999-01 of 5 February 2001, 119 I.L.R. 566, 585-86
(“[T]here appears no reason why the UNCITRAL Rules cannot be adapted to apply to a non-
contractual dispute”).
689) Kaverit Steel & Crane Ltd v. Kone Corp., [1992] ABCA 7 (Alberta Ct. App.); A. Samuel,
Jurisdictional Problems in International Commercial Arbitration 151 (1989) (“It is apparent
from [Article II(1)] that tort or other types of civil law claims fall within the ambit of the
Convention”).
690) See §1.04[B][2]; §6.01 .
691) UNCITRAL, Analytical Commentary on Draft Text of A Model Law on International Commercial
Arbitration, U.N. Doc. A/CN.9/264, Art. 7, ¶4 (1985) (reference to contractual and
noncontractual disputes is expansive and “should be given a wide interpretation so as to
cover all non-contractual commercial cases occurring in practice (e.g. third party
interfering with contractual relations; infringement of trademark or other unfair
competition)”).
692) Kaverit Steel & Crane Ltd v. Kone Corp., [1992] ABCA 7 (Alberta Ct. App.).
693) See §6.04.
694) Further, as discussed below, the better view is that a Contracting State could not,
consistent with the New York Convention, declare all agreements to arbitrate tort claims
invalid or declare all tort claims nonarbitrable. Such actions would violate prohibitions,
derived from Article II and the Convention’s structure (see §4.05[C][5]), as well as the
objectives of Article II(1)’s express reference to noncontractual disputes.
695) See §6.03.
696) New York Convention, Art. II(1) (“[D]ifferences which have arisen or which may arise”); Inter-
American Convention, Art. 1 (“[A]ny differences that may arise or have arisen between
them”); European Convention, Art. I(2)(a) (by implication); UNCITRAL Model Law, Art. 7(1)
(“which have arisen or which may arise”); German ZPO, §1029(1) (“[A]ll or certain disputes
which have arisen or which may arise”); Irish Arbitration Act, §6 (expressly adopting the
UNCITRAL Model Law); Chilean Arbitration Law, Art. 7.
697) See §1.01[B][4]-§1.01[B][5]; §1.04[B][2].
698) A. van den Berg, The New York Arbitration Convention of 1958 134 (1981) (“[T]he Convention
treats both types of agreements [i.e., agreements to arbitrate existing and future disputes]
alike. … This can be considered a provisional uniform law which supersedes municipal law
for those agreements falling under the Convention”). As discussed elsewhere, there is a
substantial argument that the Convention would not permit a Contracting State to treat all
agreements to arbitrate future disputes as invalid. See §4.05[C][5].
699) Similarly, the Geneva Protocol was applicable only to agreements between nationals of
Contracting States while the Geneva Convention was applicable only to awards made in
other Contracting States, thereby imposing a reciprocity requirement of sorts. See §1.01[C]
[1]-§1.01[C][2].
700) New York Convention, Art. I(3).

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 701) 172 nations have acceded to the New York Convention as of 6 October 2023. A list of the
Convention’s parties and their reservations is available at
https://uncitral.un.org/en/texts/arbitration/conventions/foreign_arbitral_awards/status2.
Countries with reciprocity reservations include Argentina, Belgium, China, Denmark,
France, India, Japan, Netherlands, New Zealand, Russia, Singapore, Turkey, the United
Kingdom and the United States. The increasingly universal character of the New York
Convention reduces the practical importance of reciprocity reservations.
702) New York Convention, Art. XIV.
703) See §1.04[A][2]-§1.04[A][3]; §22.02[F][2].
704) The application of the reciprocity requirement to arbitral awards is discussed in detail
below. See §22.02[F][1].
705) See Restatement of the U.S. Law of International Commercial and Investor-State Arbitration
§2.5 (2023) (“Enforcement of an international arbitration agreement is not subject to any
requirement of reciprocity”).
706) See, e.g., Stemcor USA Inc. v. CIA Siderurgica do Para Cosipar, 895 F.3d 375, 379 (5th Cir. 2018)
(“[T]he agreement must provide for arbitration in the territory of a Convention signatory”);
Singh v. Carnival Corp., 550 F.App’x 683, 685 (11th Cir. 2013) (same); Aggarao v. MOL Ship Mgt
Co., Ltd, 675 F.3d 355, 366 (4th Cir. 2012) (same); Balen v. Holland Am. Line Inc., 583 F.3d 647,
654-55 (9th Cir. 2009) (same); Freudensprung v. Offshore Tech. Servs., Inc., 379 F.3d 327, 339
(5th Cir. 2004) (same); Nat’l Iranian Oil Co. v. Ashland Oil, Inc., 817 F.2d 326, 331 (5th Cir. 1987);
Ledee v. Ceramiche Ragno, 684 F.2d 184, 185-86 (1st Cir. 1982); DaPuzzo v. Globalvest Mgt Co.,
LP, 263 F.Supp.2d 714, 726 (S.D.N.Y. 2003); Tolaram Fibers, Inc. v. Deutsche Eng’g Der Voest
Alpine Industrieanlagenbau GmbH, 1991 WL 41772, at *4 n.3 (M.D.N.C.). See also §14.08[B][2]
[a].
707) Fuller Co. v. Compagnie des Bauxites de Guinée, 421 F.Supp. 938, 941 n.3 (W.D. Pa. 1976). See
also Cosgun v. Seabourn Cruise Line Ltd Inc., 2023 WL 2660243, at *31 (S.D. Fla.) (“[T]he
requirement that the award be entered in a fellow signatory state is ... relevant only ‘at the
award enforcement stage, not at the arbitration-enforcement stage’”); Gatoil Int’l Inc. v.
Nat’l Iranian Oil Co., XVII Y.B. Comm. Arb. 587 (QB) (English High Ct. 1988) (1992).
708) E.A.S.T. Inc. of Stamford, Conn. v. MV Alaia, 876 F.2d 1168 (5th Cir. 1989).
709) See §14.08[B][2][a]; §22.02[F].
710) A list of the Convention’s parties and their reservations is available at www.uncitral.org.
Nations that have made a reservation with regards to prospective application of the
Convention include Belize, Bosnia, Ethiopia, Iraq, Malawi, Malta, Montenegro, Palau,
Moldova, Serbia, Sierra Leone, Tajikistan, Turkmenistan and the former Yugoslavia. The
former Yugoslavia acceded to the Convention in 1982 with the following reservation “The
Convention is applied in regard to the Socialist Federal Republic of Yugoslavia only to
those arbitral awards which were adopted after the coming of the Convention into effect.”
Following the dissolution of Yugoslavia, the newly independent states, i.e., Bosnia, Croatia,
Macedonia, Montenegro, Serbia and Slovenia, each declared their intention to continue to
be parties to the New York Convention on the terms originally declared by the former
Yugoslavia, including its reservations. Of those states, Bosnia, Montenegro, and Serbia still
apply the reservation regarding the retroactive application of the Convention.
711) See www.uncitral.org. By contrast, Palau reserved the Convention’s applicability “only to
those arbitral awards … adopted after the coming of the Convention into effect,” Tajikistan
to “differences and arbitral Awards arised out [sic] after entering into force of this
Convention,” and Moldova to “those arbitral awards that have been brought after entering
into force of the Convention.”
In a 2000 decision, the Moldovan Supreme Court of Justice did not apply the Moldovan
reservation, holding that the New York Convention was applicable to an award rendered
before the Moldovan Parliament ratified the Convention and it entered into force. The
Court reasoned that the Soviet Union had been a Contracting State to the Convention since
1961, and that Moldova was subject to its validity under the principle of continuity under
Moldova’s declaration of independence. See Judgment of 11 September 2000, No. 4-2r/a-
41/2000 (Moldovan S.Ct.). See also Martin, Moldova: Recognition and Enforcement of Foreign
Arbitral Awards, in R. Zykov (ed.), Recognition and Enforcement of Foreign Arbitral Awards in
Russia and Former USSR States 471-72 (2021).
712) Vienna Convention on the Law of Treaties, Art. 19.
713) New York Convention, Arts. II(1)-(2). See §5.02[A] .
714) UNCITRAL Model Law, 1985, Art. 7(1); UNCITRAL Model Law, 2006 Revisions, Arts. 7(2)-(3); U.S.
FAA, 9 U.S.C. §2; English Arbitration Act, 1996, §5; Swiss Law on Private International Law,
Art. 178(1); German ZPO, §1031(1); §5.02[A][5].
715) See §5.02.

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