Environmental Engineering Reference
In-Depth Information
Other authors point out that national courts are not the key player in arbitration,
but serve a vital part as an
(
...
) executive partner to provide effectiveness to arbitral
'
93
This is closely connected to the fact that arbitration is “only” an
alternative dispute resolution, which needs the support of national courts.
94
ICC
practice also indicates that there is no desire to decouple an international arbitration
completely from national courts and their judicial tools.
95
The same applies for
international investment arbitration. If the country in question adopted Art. 2 of the
NY Convention and interfered with or sabotaged an arbitration award by a national
court, this act would be a violation of the state
'
s obligation, according to the
Convention.
96
proceedings.
'
2.1.3.2 Characteristics of International Commercial Arbitration
The biggest difference between international commercial and investment arbitra-
tion rests in the fact that parties differ. In the case of investment arbitration the
parties are the investor (private) and the host state (public), whereas in commercial
arbitration, there are mostly non-state actors participating. One ICSID tribunal
underlined this requirement as it dismissed a case, because the investment was
between two private parties.
97
Within international investment arbitration one party
must be the host state. There are two different types within international commer-
cial arbitration, namely ad hoc and institutional arbitration. Institutional arbitration
is:
(
) [W]here the parties choose to refer their disputes to arbitration conducted under the
rules of a particular institution (
...
) will assist in matters such as initiation of
the arbitration, the formation and appointment of the tribunal and general administration of
the arbitration.
98
...
) (, which) (
...
Ad hoc arbitration on the other hand is a form of arbitration performed by the
parties without an institution.
99
International commercial arbitration is often chosen
to avoid the publicity stemming from a dispute.
100
Unlike in investment disputes,
93
Sattar (
2010
), 51 (52) and (73); Nariman (
2004
), 123 (129); Delaume (
1983
), 784 (785);
Schobener and Markert (
2006
), 65 (106); McIlwrath and Savage (
2010
), 27 para 1-037 and
30 paras 1-044 and 1-045; Nmehielle (
2001
), 21 (36).
94
Judges and arbitrators work together in the field of international law, in: Nariman (
2004
),
123 (125); Redfern et al. (
2004
), 1 para 1-01; Sattar (
2010
), 51 (52); cf Nmehielle (
2001
), 21 (36).
95
Sattar (
2010
), 51 (53) and (54).
96
Kovacs (
2008
), 421 (424); Sattar (
2010
), 51 (68).
97
ICSID [2013] ARB/11/18—Award, 30 para 144.
98
Kutty (
2006
), 565 (572-573); Redfern et al. (
2004
), 47 para 1-99; Partasides and Fullelove
(
2010
), 1 (2).
99
Redfern et al. (
2004
), 47 para 1-99; Kutty (
2006
), 565 (571); Partasides and Fullelove (
2010
),
1 (2).
100
Moss (
2009
), 782 (792).
