Professor Franco Ferrari, the Center’s Director, has just published a paper titled “International Commercial Arbitration is also National” in a multi-language volume edited by Gilberto Giusti, Eliana Baraldi, Eduardo Vieira de Almeida, and Gustavo Favero Vaughn, and coordinated by Paula Akemi Taba Vaz, titled “Arbitragem e Poder Judiciário.”
The 65 papers contained in the volume, which cover all aspects of the arbitration process, are divided into various chapters, addressing the duty to disclose, confidentiality, conflicts of jurisdictions, extension of the arbitration agreement to non-signatories, the principle of iura novit curia and its impact on arbitration, the role of judicial precedents, interim measures, judicial cooperation, the role of estoppel, guerilla tactics, the post-award phase, enforcement of awards, constitutional control over arbitration, arbitration and corporate law, consumer law and arbitration, tax law issues, competition law issues, bankruptcy and arbitration, legal fees in arbitration, etc.
In regard to the paper by Professor Ferrari, it shows that the seat of arbitration is important at all stages of an arbitration’s life-span. At the pre-award stage, the seat triggers the application of the arbitration regime in many States in which the arbitration regime is based on the territorial approach. The seat also determines where the arbitral award “was made”, which is essential for the post-award stage (both for set-aside and recognition and enforcement proceedings). From this it follows that, in international arbitration, choosing the seat is of paramount importance. Foregoing the choice of the seat means giving up an arbitration planning tool, for which there is no appropriate remedy. In effect, where the seat constitutes the connecting factor making applicable a given arbitration regime, as it does under most arbitration regimes, it does so irrespective of the parties’ choice, that is, irrespective of who ultimately will identify the seat. The parties’ failure to choose a seat directly will render applicable the default rules for identifying the seat, thus leaving one of the most pivotal decisions to a third-party, however this third-party will be identified.