Arbitration and Contract Law: Common Law Perspectives (Ius Gentium: Comparative Perspectives on Law and Justice Book 54)

This book deals with the contractual platform for arbitration and the application of contractual norms to the parties' dispute. Arbitration and agreement are inter-linked in three respects: (i) the agreement to arbitrate is itself a contract; (ii) there is scope (subject to clear consensual exclusion) in England for monitoring the arbitral tribunal's fidelity and accuracy in applying substantive English contract law; (iii) the subject-matter of the arbitration is nearly always a â#x80;contractualâ#x80;#x99; matter. These three elements underlie this work. They appear as Part I (arbitration is founded on agreement), Part II (monitoring accuracy), Part III (synopsis of the English contractual rules frequently encountered within arbitration). The book will be a useful resource to foreign lawyers or English non-lawyers, English lawyers seeking a succinct discussion, and to arbitral tribunals Dedication 6 Preface 8 Arbitration and the Three Dimensions of Consent 8 Ten Leading Points Within English Arbitration Law 9 Contents 12 Part I: Arbitration: A Consensual Process 16 Chapter 1: The Landscape of International Commercial Arbitration 17 1.1 Arbitration’s Perceived Advantages 17 1.2 The Three Pillars of International Commercial Arbitration 22 1.3 Need for a Transnational ‘Mentality’ in the Conduct of International Arbitration 27 Bibliography 27 International Commercial Arbitration 27 English Arbitration 29 Arbitration in Other Systems 30 Arbitration: Theory and Fundamental Analysis 30 Chapter 2: Arbitration Agreements: Validity and Interpretation 31 2.1 Introduction 31 2.2 What Type of Dispute-Resolution Clause? 31 2.3 Arbitration Agreements and Contractual Imbalance 34 2.4 Drafting Issues 36 2.5 Need for a Written Arbitration Agreement 38 2.6 Judicial Interpretation of Arbitration Agreements 42 2.7 Need for a Clear Commitment to Arbitrate 44 2.8 Expert Determination Clauses and Other Forms of Dispute Resolution 47 2.9 Agreements to Engage in Negotiation or Mediation Before Arbitration 49 2.10 ‘Separability’ of the Arbitration Agreement from the Main Contract 51 2.11 Parties to Arbitration: Joinder and Consolidation 55 2.12 Termination of Arbitration Agreements 59 Chapter 3: ‘The Seat’ and the Laws Affecting the Arbitration 64 3.1 Introduction 64 3.2 The Law Governing the Substance of the Dispute 65 3.3 The Seat of the Arbitration 67 3.4 The Law Governing the Arbitration Agreement 70 3.5 The Law of the Arbitral Process: Procedural and Curial Laws 75 3.6 ‘Arbitrability’: Disputes Beyond the Pale of Arbitration 76 Chapter 4: Upholding the Agreement to Arbitrate 80 4.1 Introduction 80 4.2 Staying English Court Proceedings 81 4.3 Anti-suit Injunctions in Support of Arbitration Agreements 85 4.4 Damages for Breach of Arbitration Agreements 94 4.5 Inconsistent Foreign Decisions Concerning the Arbitration Agreement 96 4.6 English Court Ratifying Arbitral Tribunal’s Negative Declaratory Award 97 4.7 Protective Relief Granted by Courts in Support of Arbitration 99 4.8 Other Interim Relief Granted by the Courts in Support of Arbitation 101 Chapter 5: Appointing the Tribunal 103 5.1 Introduction 103 5.2 Appointment Machinery 104 5.3 Absent Members: Gap-Filling 106 5.4 Payment of Arbitrators and Determination of Party Costs 109 5.5 Arbitrators’ Immunity 111 5.6 One or More Arbitrators? 111 5.7 Criteria for Selection of the Arbitral Tribunal 112 Chapter 6: The Tribunal’s Integrity: Impartiality and Procedural Responsibilities 115 6.1 Impartiality and Independence of Arbitrators 115 6.2 Procedural Responsibilities of the Tribunal 124 Chapter 7: Confidentiality and the Arbitral Process 129 7.1 Introduction 129 7.2 Implied Term Analysis 130 7.3 Scope of Protection 130 7.4 Judicial Relaxation of Confidentiality 132 7.5 Judicial Proceedings Within the High Court: Hearings and Judgment 134 7.6 Confidentiality: Non-English Developments 135 Part II: Monitoring the Tribunal’s Application of Contract Law 138 Chapter 8: Awards Disclosing Errors of English Law 139 8.1 Introduction 139 8.2 General Features of the Gateway Under Section 69 141 8.3 Key to the Section 69 Lock: A Point of English Law 145 8.4 Exclusion of Appeal on Points of English Law 147 8.5 Effect of the High Court Appeal Under Section 69 148 8.6 International Controversy Concerning Section 69 Challenges 149 8.7 Concluding Remarks 150 Chapter 9: Refusal to Give Effect to Foreign Awards 153 9.1 The Scheme of the New York Convention (1958) 153 9.2 National Court’s Annulment of a Domestic Award: The Position of a Foreign Enforcing Court 164 9.3 The Dallah Saga: English Court’s Refusal to Enforce the French Award 167 Part III: Central Contractual Doctrines 173 Chapter 10: Sources and General Principles of English Contract Law 174 10.1 Sources of English Contract Law 174 10.2 Principle 1: Freedom of Contract 175 10.3 Principle 2: The Objective Principle 177 10.4 Principle 3: Pacta Sunt Servanda (The Binding Force of Agreement) 178 10.5 Principle 4: Good Faith and Fair Dealing (A Principle in Waiting) 179 10.6 Principle 5: Estoppel – Protection Against a Party’s Inconsistency 181 Chapter 11: Validity 185 11.1 Certainty 185 11.2 Writing 188 11.3 Guarantees (Surety Agreements): Nature 189 11.4 Deeds or Covenants 192 11.5 The Consideration Doctrine 193 11.6 Intent to Create Legal Relations 194 11.7 Illegality and Public Policy 196 11.8 Third Parties and Assignment 196 Chapter 12: Misrepresentation and Coercion 197 12.1 Misrepresentation 197 12.2 Misrepresentation and Exclusion Clauses 204 12.3 Exceptional Duties to Disclose 206 12.4 Other Grounds of Vitiation: Mistake, Duress, Undue Influence, and Unconscionability 207 Chapter 13: Terms and Variation 212 13.1 Overview of Contractual Terms 212 13.2 Written Agreements and the Parol Evidence Rule 213 13.3 Implied Terms 214 13.4 Exclusion Clauses in General 222 13.5 Consumers Contracts: Control of Unfair Terms 226 13.6 Warranties and Indemnities in Sales of Businesses 226 13.7 Variation of Contracts 231 Chapter 14: Interpretation of Written Contracts 235 14.1 Principles for the Interpretation of Written Contracts 235 14.2 Equitable Doctrine of Rectification of Written Agreements 252 Chapter 15: Breach 255 15.1 Nature of Breach 255 15.2 Effects of Breach 263 15.3 The Process of Terminating for Breach 275 15.4 Incomplete Performance 278 Chapter 16: Frustration and Termination by Notice 279 16.1 The Frustration Doctrine 279 16.2 Termination by Notice: Contracts of Indefinite Duration 283 Chapter 17: Remedies for Breach of Contract 285 17.1 Money Claims in General 285 17.2 The Claim in Debt 289 17.3 Compensation Claims 291 17.4 Coercive Orders: Specific Performance and Injunctions 305 17.5 Declarations, Accounts, and Stays 313 17.6 Protection Against Penalty Clauses 315 17.7 Deposits 320 17.8 Restitution and Unjust Enrichment 323 17.9 Set-Off 326 17.10 Limitation of Actions (Prescription of Claims) 332 Index 340 This Book Deals With The Contractual Platform For Arbitration And The Application Of Contractual Norms To The Parties' Dispute. Arbitration And Agreement Are Inter-linked In Three Respects: (i) The Agreement To Arbitrate Is Itself A Contract; (ii) There Is Scope (subject To Clear Consensual Exclusion) In England For Monitoring The Arbitral Tribunal's Fidelity And Accuracy In Applying Substantive English Contract Law; (iii) The Subject-matter Of The Arbitration Is Nearly Always A ‘contractual’ Matter. These Three Elements Underlie This Work. They Appear As Part I (arbitration Is Founded On Agreement), Part Ii (monitoring Accuracy), Part Iii (synopsis Of The English Contractual Rules Frequently Encountered Within Arbitration). -- Back Cover. Part 1. Arbitration: A Consensual Process -- The Landscape Of International Commercial Arbitration -- Arbitration Agreements: Validity And Interpretation -- ‘the Seat’ And The Laws Affecting The Arbitration -- Upholding The Agreement To Arbitrate -- Appointing The Tribunal -- The Tribunal’s Integrity: Impartiality And Procedural Responsibilities -- Confidentiality And The Arbitral Process -- Part 2. Monitoring The Tribunal’s Application Of Contract Law -- Awards Disclosing Errors Of English Law -- Refusal To Give Effect To Foreign Awards -- Part 3. Central Contractual Doctrines -- Sources And General Principles Of English Contract Law – Validity -- Misrepresentation And Coercion -- Terms And Variation -- Interpretation Of Written Contracts – Breach -- Frustration And Termination By Notice -- Remedies For Breach Of Contract. Neil Andrews. Includes Bibliographical References And Index. Front Matter....Pages i-xiv Front Matter....Pages 1-1 The Landscape of International Commercial Arbitration....Pages 3-16 Arbitration Agreements: Validity and Interpretation....Pages 17-49 ‘The Seat’ and the Laws Affecting the Arbitration....Pages 51-66 Upholding the Agreement to Arbitrate....Pages 67-89 Appointing the Tribunal....Pages 91-102 The Tribunal’s Integrity: Impartiality and Procedural Responsibilities....Pages 103-116 Confidentiality and the Arbitral Process....Pages 117-125 Front Matter....Pages 127-127 Awards Disclosing Errors of English Law....Pages 129-142 Refusal to Give Effect to Foreign Awards....Pages 143-162 Front Matter....Pages 163-163 Sources and General Principles of English Contract Law....Pages 165-175 Validity....Pages 177-188 Misrepresentation and Coercion....Pages 189-203 Terms and Variation....Pages 205-227 Interpretation of Written Contracts....Pages 229-248 Breach....Pages 249-272 Frustration and Termination by Notice....Pages 273-278 Remedies for Breach of Contract....Pages 279-333 Back Matter....Pages 335-342 This book deals with the contractual platform for arbitration and the application of contractual norms to the parties' dispute. Arbitration and agreement are inter-linked in three respects: (i) the agreement to arbitrate is itself a contract; (ii) there is scope (subject to clear consensual exclusion) in England for monitoring the arbitral tribunal's fidelity and accuracy in applying substantive English contract law; (iii) the subject-matter of the arbitration is nearly always a â#x80;contractualâ#x80;#x99; matter. These three elements underlie this work. They appear as Part I (arbitration is founded on agreement), Part II (monitoring accuracy), Part III (synopsis of the English contractual rules frequently encountered within arbitration). The book will be a useful resource to foreign lawyers or English non-lawyers, English lawyers seeking a succinct discussion, and to arbitral tribunals This book deals with the contractual platform for arbitration and the application of contractual norms to the parties' dispute. Arbitration and agreement are inter-linked in three respects: (i) the agreement to arbitrate is itself a contract; (ii) there is scope (subject to clear consensual exclusion) in England for monitoring the arbitral tribunal's fidelity and accuracy in applying substantive English contract law; (iii) the subject-matter of the arbitration is nearly always a ĺlcontractualĺl matter. These three elements underlie this work. They appear as Part I (arbitration is founded on agreement), Part II (monitoring accuracy), Part III (synopsis of the English contractual rules frequently encountered within arbitration). The book will be a useful resource to foreign lawyers or English non-lawyers, English lawyers seeking a succinct discussion, and to arbitral tribunals