I. INTRODUCTION
MANY INDUSTRIES have come to benefit from the unprecedented expansion of the global economy and the corresponding rise in international trade in recent years. Perhaps no industry, however, can match the rapid change in globalization experienced by the technology industry, [3] which has required it to adapt quickly to global dispute resolution procedures, including international arbitration, as a means for resolving business disputes.
Economic globalization has also fuelled explosive growth and increased demands on international arbitration. Increasingly, nations compete with each other for selection as the forum for international arbitration. [4] This competition is reflected, in part, in the development of national arbitration laws which are often a significant determinant of a nation's ranking among the leading world arbi-tration centres. [5]
Historically, London has vied with Paris and Geneva for the title of the world's pre-eminent arbitration centre, but within the past decade, London has been seen to be falling behind. English arbitration law was increasingly perceived to be dated and out of touch with modern international arbitration practice. [6] As England's standing was eclipsed, other nations, particularly economic strongholds around the Pacific Rim, attempted to fill the void. [7] Many of these foreign efforts have been successful, particularly with regard to attracting technology arbitrations. [8]
England has attempted to meet the challenge under the Arbitration Act 1996. The Act, which became effective on 1 January 1997, was designed largely to return England to its glory as a preferred seat for the arbitration of international business disputes. Although technology arbitration did not receive any specific mention in the Act, the explosive globalization of the technology industry makes it a suitable subject for consideration. This article examines the new Act in order to determine its usefulness in promoting London as a centre for the resolution of international technology disputes.
II. ASPECTS OF INTERNATIONAL TECHNOLOGY DISPUTE RESOLUTION
Technology disputes typically centre on contract or intellectual property law issues. Those issues suitable for arbitration frequently arise out of licensing agreements in which the intellectual property owner grants rights to use a trade secret, to manufacture or distribute copyrighted or patented products, or to utilize a trademark in the marketing of a product. The disputes tend to involve allegations of improper use of the property right by the licensee (in which case injunctive relief is often sought), or a question of royalties being owed to the licensor. Also common are disputes which follow a corporate acquisition where part of the property acquired was intellectual property: in these cases the arbitration may be required to look into registration, ownership, or valuation issues or the existence of rights in light of the warranties provided. [9]
(a) Neutrality
As with other international commercial disputes, the driving force in the development of international technology dispute resolution has been forum avoidance. [10] One of the greatest concerns for both sides in any international dispute is the substantive and procedural fairness of the foreign court system. [11] Parties typically prefer to accept a neutral forum over the uncertainties of minefields in foreign laws and the risk of bias by foreign courts. [12] International arbitration provides this alternative. Effectively, international arbitration is often chosen by default, not because the parties perceive it to be inherently superior but because they are not willing to litigate in their counterpart's jurisdiction. In the context of international technology disputes, which often involve transactions between purchasers in developed Western countries and suppliers in developing Asian countries, and often involve cultural as well as legal clashes, arbitration is a comforting alternative for both sides.
(b) Speed/Flexibility
In theory, international arbitration is generally considered to be quicker, more flexible, and less formal than litigation. [13] There is far greater freedom for both the tribunal and the parties: subject to the arbitration agreement provisions, the panel may control the procedures to be employed, the rules pertaining to taking testimony, and evidential matters. The parties usually choose the arbitrators, the language to be used, the use of interim measures, the substantive law, and as a practical matter, the degree of procedural formality. Effectively, national arbi-tration laws regulate intervention by local courts so that the parties have greater flexibility to conduct the arbitration. [14] Many of these factors are of critical concern in the context of technology disputes. Technology changes rapidly: products are often considered dated within months of release; accordingly, time is of the essence in resolving technology disputes. Flexibility is prized and the opportunity for conciliation is paramount. Dispute resolution procedures con-ducted in an informal manner provide the greatest opportunity for the continuity of business relationships.
(c) Confidentiality
Confidentiality protections are required in the resolution of many technology disputes. Not only may the parties wish to maintain the confidentiality of the technology in issue, but there may also be financial data, new product information, and marketing strategies which are extremely sensitive. Therefore, hearings which remain closed and procedures which protect the confidentiality of evidence and awards are favoured in this arena. While confidentiality is often cited as an advantage of international arbitration, recently the scope of confidentiality protections in arbitration has come under scrutiny. [15] Historically, national laws have paid scant attention to confidentiality. [16] Likewise, the UNCITRAL Model Law makes no provision for the privacy of proceedings or the confidentiality of awards. In fact, the newly created World Intellectual Property Organization rules are the only institutional rules which provide significant confidentiality protections. [17]
(d) Expertise
The option to choose arbitrators is often cited as an advantage of arbitration over litigation, since arbitration allows the parties or the arbitral institution to select arbitrators with technical experience. While not always effective, this option provides an opportunity to enhance the quality of decision-making in cases. [18]
(e) Enforcement
Historically, the arbitration of intellectual property disputes has been dis-favoured, resulting in both arbitrability and enforcement difficulties. Various nations do not recognize the arbitrability of intellectual property issues at all, while others limit the scope of arbitrability, particularly with regard to validity issues. [19] To date, England's position on these issues has been better than most, recognizing arbitrability between the parties on infringement and damage issues. [20] Review of awards is, of course, under the control of the courts of the place of arbitration: however, even if the seat of the arbitration permits arbitrability, there remains a risk regarding enforcement. [21] Under Article V(2) of the New York Convention, enforcement may be refused by the country where enforcement is sought if the subject matter of the arbitration is not capable of settlement by arbitration under the laws of that country or if the award would be contrary to public policy. No national law can cure the risk that another nation will not enforce the award, but parties seeking enforcement under the New York Convention or other international treaties are better positioned than others. [22]
(f) Injunctive Relief
Often the most serious concern when arbitrating a technology dispute (particularly for a licensor) is the availability of interim injunctive relief. Many technology disputes are settled or otherwise resolved after the grant or denial of interim injunctive relief. Parties may provide for injunctive relief in the arbitration agreement and arbitral rules often authorize arbitrators to grant provisional relief, but without clear authorization in the governing national law, arbitral panels may not have the confidence or legal authority to grant such relief. Likewise, without a clear mandate, domestic courts are often unwilling to intervene in the arbitral process and grant injunctive relief on their own. [23] Moreover, foreign courts are often unwilling to enforce interim awards on finality grounds. [24]
III. CONCEPTUAL UNDERPINNINGS TO NATIONAL LAW ANALYSIS
The seat of the arbitration is almost invariably set forth in the arbitral agreement between the parties. The fundamental importance of the selection of the seat is that it is acknowledged to be determinative of the lex arbitri -- the law of the arbitration. [25] In essence, the law of the arbitration is a territorial concept; it requires application of the lex loci arbitri -- the law of the place of the arbitration. [26] This approach to the lex arbitri holds, for example, that if the seat chosen for the arbitration is England, it follows that the arbitration process will be subject to the national arbitration law of England regardless of the substantive law governing the arbitration contract, the substantive law governing the subject matter of the dispute, or the procedural rules adopted. [27]
Of course, the efficiency and effectiveness of the arbitration itself will be influenced strongly by the terms of the arbitral agreement, the choice of arbitral institution, the rules of substantive law, and the participants involved. The law of the seat, however, bears the overall responsibility of public policy and value of the forum as a seat. [28] Presumably, the national law will reflect national interests concerning the protection of societal welfare and fairness to the parties. To be an attractive forum for international arbitration, however, nations must properly balance these interests with the demand for procedural independence. [29]
In this context, it can be concluded that the legal framework which best provides for international arbitrations, generally, is one which provides assur-ances of neutrality, respects the intentions and needs of the parties, allows enough autonomy for the dispute to remain within the tribunal, provides the tribunal with sufficient power to carry out its functions, and maintains a suitable level of court supervision. With regard to technology arbitrations, in particular, we have seen from our previous analysis that the appropriate balancing must provide for a neutral forum, arbitrability of intellectual property disputes, speedy and flexible procedures, adequate confidentiality protection, the opportunity to appoint expert arbitrators, and ready access to injunctive relief. [30]
IV. RELEVANT COMPONENTS OF THE ENGLISH ARBITRATION ACT 1996
After years of bureaucratic wrangles, political hurdles and intellectual debate, the huge task of overhauling the arbitration law of England, Wales, and Northern Ireland was completed by the implementation of the Arbitration Act 1996. The new law is significant in breadth and scale. It consolidates domestic and inter-national arbitration legislation into one law. According to the explanatory memorandum which accompanied the Bill, the Arbitration Act 1996 'restates existing legislation on arbitration, as set out in the Arbitration Acts of 1950, 1975 and 1979, whilst at the same time codifying principles established by recent case law. It also introduces certain changes in the law which are designed to improve arbitration as a fair, speedy and cost effective way of resolving disputes. It reflects as far as possible the format and provisions of the UNCITRAL model law on international commercial arbitration.' An important concern when drafting the Bill was to create a law which was 'set out in a logical order, expressed in a language which is sufficiently clear and free from technicalities to be readily comprehensible to the layman'. [31]
(a) Policy Favouring Procedural Independence and Neutrality
As reflected by the explanatory memorandum, the new Act is conceptually favourable towards modern arbitral dispute resolution. The drafters' reliance upon the UNCITRAL Model Law is an acknowledgment of the demand for procedural independence. The decision was a pragmatic one; the Model Law epitomizes the current view of procedural independence and the notions of neutrality which flow from such independence. [32] Reliance on this widely accepted model demonstrates the desire to promote arbitration in England as neutral and user friendly.
(b) Provisions Relating to Giving Effect to the Parties' Intentions
A fundamental component of procedural independence requires giving effect to the intention of the parties. Indeed, 'party autonomy' is fundamental to arbitral philosophy, and the mere existence of the arbitration is dependent upon it. It enhances the predictability of the proceedings while also allowing the parties reasonable flexibility in setting the procedures.
It is a general policy of the 1996 Act to reinforce the importance of the arbitration agreement and give effect to party autonomy. Parties are given a free rein to decide matters, provided that their agreements are not contrary to public policy, and arbitrators are encouraged to give effect to these wishes. The Act states which of its provisions are mandatory and generally allows the parties to make their own decisions where they are not. [33]
Almost every area of the Act takes into account the intention of the parties in one form or another. One of the greatest influences on any hearing is the skill, integrity, and experience of the arbitrators. This is particularly true in technical matters. Recognizing this, the Act allows the parties to choose the number of arbitrators, the procedure for appointing them, and what is to happen in the event of failure to appoint. It also stresses that due regard must be given to the agreement of the parties in relation to arbitrator's qualifications (ss. 15--19). Either one may apply to have an arbitrator removed and they are free to choose the arbitration's powers in relation to the award and interest (ss. 47, 49 and 59).
Many of the more important clauses are subject to the 'unless otherwise agreed by the parties' caveat. Notably, these include the tribunal's ruling on its own substantive jurisdiction (s. 30); making an award dismissing the claim (s. 41); and ordering security for costs (s. 38). There are a number of powers granted to the tribunal which can only be exercised if positively agreed by the parties: examples include the consolidation of the proceedings with other arbitral proceedings (s. 35) and the power to order on a provisional basis any relief which it would have power to grant in a final award (s. 39).
The parties also have wide-ranging powers to exclude interference by the local courts. Many of the courts' powers are effective 'unless otherwise agreed by the parties': for example, the power to make an order requiring a party to comply with a peremptory order (s. 42); powers to grant interim injunctions, preservation of evidence or taking of witnesses (s. 44); powers to determine a question of law which arises during the hearing (s. 45); and the right of a party to appeal on a point of law (s. 69). Interestingly section 46 allows the arbitrator to decide the dispute either in accordance with the law chosen by the parties or in accordance with such 'other considerations as are agreed by the parties or determined by the tribunal'. This allows the dispute to be settled not only by the chosen governing law but also, or instead, by other less formal principles of fairness and good faith, ex aequo et bono.
Generally, if parties fail to decide on procedural or evidential issues, the Act provides for the tribunal to make the decisions (including evidential issues and questions to be put). To ensure efficiency in light of this autonomy, the parties have a general duty to do all things necessary for the proper and expeditious conduct of the arbitral proceedings. They are obliged to comply without delay with any determination as to procedural or evidential matters, or with any order or direction of the tribunal and, where appropriate, to take any necessary steps to obtain a decision of the court on a preliminary question of jurisdiction of law (s. 40).
(c) Provisions Relating to the Autonomy of the Arbitration Procedure
Traditionally, one of the main concerns with arbitrating a dispute is whether the tribunal can deal effectively with all of the issues that may arise without the need for interference from the local courts. In spite of an arbitral agreement, a party may initiate court proceedings, petition the court to declare the arbitral agreement void, or challenge the arbitrator's jurisdiction. These have become a regular part of the arbitration process and are used increasingly as a device for procedural delay.
A hearing dealt with by a tribunal alone allows the natural process of arbitration to flow and tends to be more efficient. The neutrality of the process, as the prime reason for choosing arbitration over litigation, may suffer if the peculiarities of the local court come to bear. Privacy, being particularly important in technology cases, is more subject to public scrutiny with continued referral to the courts. Flexibility, informality, control, and procedural predictability all start to disintegrate with too much court interference. In short, an arbitration where the courts are used to interfere with (as opposed to support) the arbitral process is unlikely to be giving full effect to the parties' intention or arbitral agreement.
Two related doctrines have developed which bear on the integrity of the tribunal in the face of such challenges: separability and competénce de la compétence. The new Act attempts to deal with both doctrines.
First, the Act promotes the inherent power of the arbitration panel to rule on its own jurisdiction (the doctrine of compétence de la compétence) and invests the arbitrators with clearly defined powers. The tribunal may rule on its own substantive jurisdiction as to whether there is a valid arbitration agreement; whether the tribunal is properly constituted; and what matters have been submitted to arbitration in the course of the agreement (s. 30). By section 31, a party wishing to challenge the substantive jurisdiction of the tribunal must do so not later than the time he takes the first step in the proceedings to contest the merits of any matter. An objection that the tribunal is exceeding its jurisdiction during the proceedings is permitted but must be made as soon as possible after the matter is raised.
Only in limited circumstances will a court have the power to intervene to determine jurisdictional questions (s. 32). A party's right to direct court challenge may be lost if the application is not made with in the time allowed by the above provisions, thereby limiting the prospects for delay. Further, by virtue of section 32(4) the tribunal may continue the arbitral proceedings and make an award while an application to the court is pending. Used competently, the above provisions should minimize delay, limit the opportunities for jurisdictional challenges, keep them within the tribunal, and confine them to genuine cases.
Secondly, the doctrine of separability provides that an arbitration clause within a contract is distinct from the main contract, and therefore continues to be valid even if the main contract is void. The doctrine conforms with the intention of the parties and acts to keep the dispute within the tribunal by allowing it to rule on the validity of the main contract. Like the UNCITRAL Model Law, the new English Act expressly adopts the separability doctrine (s. 7). This provides that an arbitration agreement which forms or was intended to form part of another agreement shall not be regarded as invalid, non-existent or ineffective because that other agreement is invalid or did not come into existence or has become inactive, and it shall for that purpose be treated as a distinct agreement.
Prior to the Act, English courts favoured the principle of separability but had been somewhat reluctant to accept the doctrine of compétence de la compétence. The new law, by delegating the authority to decide jurisdictional matters to the arbitrator and specifically providing for separability, preserves the interrelationship between the two doctrines, thus making it more difficult for parties to opt out of the arbitration agreement.
(d) Provisions Relating to the Powers of the Tribunal
To avoid court challenges and to give proper effect to the arbitration agreement, the tribunal must be vested with sufficient power. The Act attempts to fulfil this goal with an array of provisions emphasizing the tribunal's authority (often subject to agreement or contrary agreement by the parties). To enhance efficiency in light of these powers, the Act places general duties on the tribunal itself. By section 33, the tribunal is to act fairly and impartially as between the parties and adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense. Further support, in order to remove the effect of past case law, is the decision to grant arbitrators and their institutions statutory immunity (s. 29). Arbitrators and the institutions can now work in the knowledge that a lawsuit against them will not follow, provided that they have not acted in bad faith.
A theme throughout many of the provisions is the requirement that before a court can exercise its supervision, the agreed procedures of the institution must have been exhausted. Importantly, by section 44, the court is only to act if, or to the extent that, the arbitral tribunal or any other person vested by the parties with power in that regard has no power or is unable for the time being to act effectively.
Section 38 deals with the concern that the English courts were willing to use broad powers over an arbitral proceeding following the infamous Ken-Ren case (where the House of Lords ruled that English courts had the right to order security for costs in arbitration proceedings). [34] Unless otherwise agreed, tri-bunals may now order a claimant to provide security for costs. Further, the parties are free to agree that the tribunal shall have the power to order, on a provisional basis, any relief which it would have the power to grant in the final award, for example interim payments (s. 39). To encourage the parties to abide by their procedural duties the tribunal is given power, unless otherwise agreed, to dismiss the claim if there has been inordinate and inexcusable delay (s. 41).
As discussed above, interim injunctions are one of the most important and common types of relief sought in technology disputes. Tribunals may be granted these powers via the agreement or under the institutional rules that apply (for example, under Article 13.1(h) of the LCIA Rules, the tribunal has the power to 'order the preservation, storage . . . of any property or thing under the control of any party'), but this alone may not be sufficient in the face of the lex arbitri. [35] The Act provides that 'the tribunal may give directions in relation to any property which is the subject of the proceedings . . . and which is owned by or is in the possession of a party to the proceedings . . . for the inspection, photography, preservation, custody or detention of the property by the tribunal . . . ' (s. 38). Further, the Act provides that the parties may agree that 'the tribunal shall have power to order on a provisional basis any relief which it would have power to grant in a final award' (s. 39). Such relief is only available if the parties expressly confer such power on the tribunal.
For purposes of technology arbitrations, these provisions could be clearer. It is not clear, for example, what standard should be applied should an injunction be necessary and injunctions, notwithstanding their importance, are not one of the two 'examples' set out at section 39(2), thus adding to the confusion. The issue can be complicated further by institutional rules which can be equally vague on the topic of injunctive relief (although the LCIA Rules (Art. 22(1)(j)) and ICC Rule (Art. 23) revisions have undoubtedly improved the position). Ultimately, such relief is necessarily dependent upon the courts for enforcement and it is perhaps for this reason that section 44 expressly reserves the court's right to grant such relief if the tribunal 'is unable for the time being to act effectively'. With so much ambiguity in this difficult area of arbitration, it would have been desirable to provide clear and comprehensive guidelines within the new law or perhaps to admit defeat gracefully and recognise that the arbitral forum cannot always provide the urgent assistance sometimes necessary for the effective resolution of disputes.
(e) Provisions Relating to the Supervisory Powers of the Courts
The Act provides the English courts with supportive and supervisory powers in relation to both the proceedings and the award. Many of these can only be exercised with agreement from the parties or when the procedure within the tribunal has been exhausted. What constitutes the correct balance between court interference and supervision can be the subject of much debate: however, there is little doubt that domestic courts serve a necessary function in arbitral pro-ceedings. This dimension is of particular significance to technology arbitrations where the arbitral tribunal does not have power to grant interim injunctions, where an injunction is sought before the tribunal is constituted, or where a third party is involved. In the same context, it is common for a resisting party to claim that the court should not interfere with the arbitral process.
A number of clauses provide for the wide-ranging support of the tribunal, including: enforcement of peremptory orders; securing the attendance of witnesses or production of evidence; and the preservation of property. In a clear effort to balance the court's role, the Act provides that only with the agreement of the parties or with the permission of the tribunal and where the court is satisfied that the determination is likely to produce substantial savings in cost, may the court 'determine any question of law arising in the course of the proceedings which the court is satisfied substantially affects the rights of one or more of the parties' (s. 45). The Act makes no attempt to expand or contract the current state of the law with regard to the arbitrability of technology disputes.
The right of appeal on a point of law is available but limited to specific circumstances, that is to say, where the decision of the tribunal is obviously wrong, or the question of law is of general public importance and the tribunal's decision is open to serious doubt (s. 69).
With regard to the enforcement of arbitral awards, under section 66, an award may be enforced in the same manner as a judgment or order of the court to the same effect: however, if the tribunal lacked substantive jurisdiction, or the award is against public policy, it shall not be enforced. A challenge to the tribunal's conduct may be made on the ground that there has been a serious irregularity. The Act defines what may constitute this conduct, giving specific categories within section 68. In the event of such conduct the Act requires that the court must refer the matter back to the tribunal for reconsideration unless it is inappropriate to do so, and only then may the court set the award aside or declare it to be of no effect. Under sections 99--104 of the Act, the law regarding the enforcement of Geneva Convention awards remains unchanged and pro-visions for enforcement of New York Convention awards are specifically delineated.
V. CONCLUSIONS
There is little doubt that the 1996 Act has vastly improved the state of arbitration law in England. Prior to the Act, the English law of arbitration was over-complicated and ill-defined. By reflecting the best parts of the UNCITRAL Model Law and providing a set of well drafted, comprehensive provisions the Act makes significant progress in rectifying these concerns.
The greatest attraction of the 1996 Act, however, is its dedication to arbitral independence. Reliance on the widely accepted Model Law demonstrates a commitment to enhance access and promote neutrality. In general, the Act gives effect to the touted advantages of international arbitration by providing increased deference to the parties' wishes, granting a fairly high level of autonomy and power to the arbitral panel, and establishing mechanisms for assistance to the panel while providing a reasoned balance between court supervision, support, and interference.
The particular concerns of parties involved in international technology disputes are covered to a large degree. Neutrality of the process is given utmost priority. The Act provides the parties and the tribunal significant flexibility with regard to the proceedings, and the availability and choice of experts as arbitrators is specifically provided for. It falls short, however, on two particularly important grounds with regard to technology disputes. First, the Act makes limited provision for confidentiality, which is protected only to the extent that arbitral hearings are closed proceedings, so the parties themselves are not prevented from making disclosures. Thus, it will be up to the parties to add a clause to their arbitration agreement dealing specifically with confidentiality or to rely upon arbitral rules providing such protection. It is unfortunate that the Act does not provide blanket cover for such issues, but presumably the Act will give effect to such provisions should they be adopted through the arbitral agreement.
Perhaps the greatest failing of the Act in the context of technology disputes is that the arbitral panel's power to grant interim injunctive relief is not clear. Interim injunctions, issued by either the arbitral panel or the court, provide protection imperative in technology disputes. Under the Act, the panel's power to make provisional awards must be expressly conferred by the parties. Injunctive relief is not cited as one of the two examples of provisional relief. The matter is complicated further because the powers granted to the English courts to support arbitral proceedings, including the power to grant injunctive relief, may be read to be exercised only in such cases where the arbitral tribunal cannot act effectively, which ought to cover a situation where urgency is required. Undoubtedly, this uncertainty is an issue which the English courts will clarify over time.
Despite its significant improvements over the previous law, it is doubtful whether the 1996 Act will provide England with the necessary advantage it requires to attract technology arbitrations away from other competing venues. England faces stiff competition on this front. First, London must prevail over Geneva and Paris, which have taken the lead in international arbitrations, and Geneva undoubtedly will receive greater benefit from the development of the WIPO Rules in the technology arena. Secondly, England must recapture the gains which Hong Kong and other Pacific Rim seats have obtained in recent years in attracting Pacific-Rim-based international technology arbitrations. [36]
There can be no doubt, however, that the 1996 Act will provide reward. It provides an attractive framework for the resolution of international commercial disputes. Undoubtedly it will enhance significantly London's standing as a centre for the arbitration of international business disputes. ENDNOTES
[1] Published in Arbitration International, Volume 13, No. 4, page 361 (1997) ©London Court of International Arbitration -- reprinted with permission.
[2] Gary L. Benton, a partner in the San Francisco office of the international law firm Coudert Brothers, is a US lawyer and English solicitor specializing in the field of international technology dispute resolution. Richard Rogers, a foreign attorney with Coudert Brothers, is an English barrister.
[3] The size of the worldwide information technology market is expected to grow from US$696,880 million in 1996 to $1,056,052 million by 2000. See The Executive Spectrum (Dataquest, 1994). In the US, the software industry grew at a rate of 12.5 per cent for 1990--1996, nearly 2.5 times faster than the overall US economy, making it the third largest manufacturing industry in the country. See Building an Information Economy (Business Software Alliance, June 1997).
[4] See Craig, 'Some Trends and Developments in the Laws and Practice of International Commercial Arbitration' (1995) 30 Tex. Int'l L.J. 1 at p. 2. For statistics, see Najar, 'The Inside View: Companies in Need of Arbitration' (1996) 12 Arbitration International 3 at p. 359.
[5] Craig, op. cit., at pp. 13--14.©
[6] Wetter, 'The Internalization of International Arbitration: Looking Ahead to the Next Ten Years' (1995) 11 Arbitration International 2 at p. 117.
[7] See Uff & Keating, 'Should England Reconsider the UNCITRAL Model Law or Not', (1994) 10 Arbitration International 2 at p. 179. Lew, 'New Act/New Look for English Arbitration', ADR Currents 7 (AAA, Summer 1996).
[8] See Craig, op. cit., at p. 55. For example, in 1983, there were only 20 international commercial arbitrations in China; by 1994, this had increased to over 500 (Uscinski, 'Arbitration in the P.R.C.', 1994 Hong Kong Directors Law Yearbook). A growing number of these arbitrations involve Pacific Rim technology trade.
[9] For further discussion see Friedland, 'Anticipating Arbitration of Intellectual Property Disputes During Contract Negotiation' presented at ICSID/ICC/AAA International Commercial Arbitration Colloquium, San Francisco (September 1994).
[10] For a general discussion of this motivation see Craig, op. cit., at pp. 2--3.
[11] See Sanders and Ragan, Concerns of American Lawyers With Foreign Arbitration Jurisdictions (1994). A survey asked arbitration lawyers what are their greatest concerns when approaching foreign jurisdictions in arbitration matters. Results showed that US counsels' greatest concern was fairness -- substantively and procedurally. All other concerns were secondary.
[12] See Najar, op. cit., at p. 362.
[13] Ibid. at p. 365.
[14] Craig, op. cit., at p. 28.
[15] See Paulsson and Rawding, 'The Trouble with Confidentiality' (1995) 11 Arbitration International at p.ü303.
[16] See Mustill & Boyd, The Law and Practice of Commercial Arbitration in England (Butterworths 1989, 2nd ed.) at pp. 432--434; Neill, 'Confidentiality in Arbitration' (1996) 12 Arbitration International 3 at p. 287.
[17] See WIPO Arbitration Rules, Arts 52, 73--76; cf. AAA International Arbitration Rules, Art. 35.
[18] See Najar, op. cit., at p. 364.
[19] See generally Blessing, 'Arbitration of Intellectual Property Disputes' (1996) 12 Arbitration International 2 at p. 191; Friedland, op. cit.
[20] Friedland places England in a category where the national laws generally permit the arbitration of intellectual property, along with the US, Belgium, Australia, and Switzerland. His other categories are those national laws which disfavour such arbitrations and those which permit them but are subject to certain limitations.
[21] As a general rule, international arbitration decisions are subject to limited appellate scrutiny by domestic courts. See Craig, The Uses and Abuses of Appeal from International Arbitration Awards (proceedings of the South-Western Legal Foundation) (1988). Various calls have been made for increased appellate supervision. See Morgan, 'The English Arbitration Act 1996 and Reform of Arbitration Law in Hong Kong and Singapore', [1996] 11 Int. Arb. Rept. 12 at pp. 20, 27 (Mealey Publications Inc); Klitgaard, 'The Transnational Arbitration of High-Tech Disputes' presented at the Institute for Transnational Arbitration, Dallas (June 1996).
[22] See Craig, Park and Paulsson, International Chamber of Commerce Arbitration (Oceana 1990, 2nd ed.) at p. 441.
[23] See Redfern, 'Arbitration to the Courts: Interim Measures of Protection -- Is the Tide About to Turn?' (1995) 30 Tex. Int'l L.J. at p. 71.
[24] Although the UNCITRAL Model Law provides for interim protection, the drafters expressed the view that enforcement of an award of interim measures was outside the scope of the law. See Holtzmann and Neuhaus, A Guide to the UNCITRAL Model Law on Commercial Arbitration: Legislative History and Commentary (The Hague, Kluwer 1989) at pp. 218, 229, 539.
[25] Technically, a distinction should be drawn between the designated 'seat' of the arbitration and the place in which the hearings are held. The seat, or place of proceedings, will be determinative of the lex arbitri but, with limitations, the hearings may be held in another location for the convenience of the tribunal or the parties.
[26] For, a fuller discussion of the territoriality principle with respect to the lex arbitri, see Craig, op. cit., at pp.ü18--25, 36. Over the years, there has been considerable discussion given to denationalizing arbitrations and the concept of anational awards. This position is best articulated by the transnational model which argues that arbitration should be unlinked from the laws of the place of arbitration. See Paulsson, 'Arbitration Unbound: Award Detached from the Law of its Country of Origin' (1985) 30 ICLQ p. 358. Although the territorial principle still governs, there is a recognized trend in legislative reform towards the emphasis of party autonomy and the relaxation of judicial controls over arbitration. Craig, op. cit., at p. 24.
[27] The national law will determine the validity of the arbitration agreement, arbitrability of the subject matter, court supervision including interim assistance and judicial review, and other procedures governing the arbitration which are not agreed upon otherwise. Additionally, the national law will dictate domestic enforcement procedures as well as impact on foreign enforcement efforts.
[28] The lex arbitri necessarily includes both legislative and judicial directives. For purposes of national policy-making, the focus here is on legislative efforts.
[29] See Craig, Park and Paulsson, op. cit. at p. 463.
[30] Obviously, the selection of the appropriate forum cannot occur in a vacuum: determination of the appropriate forum in any given transaction will be case specific and will be dependent on numerous considerations beyond national law alone.
[31] Mustill Report on the Model Law. For a history of the pre-Act reports, including the Mustill Report, see Marriott, 'The New Arbitration Bill', [1996] 11 Int. Arb. Rpt. 4 at p. 20.
[32] In fact, it has been suggested that any state which does not adopt the Model Law risks losing its standing in the competition to be a preferred arbitral seat: see Craig, op. cit., at p. 36.
[33] For further opinion see Marriott, op. cit.
[34] SA Coppée Lavalin NV v. Ken--Ren Chemicals and Fertilisers Ltd [1995] 1 AC 38: see Notes, (1994) 10 Arbitration International 3 at pp. 303 and 313.
[35] Although the final draft of the revised LCIA Rules states (at Art. 22.1(j)) that the tribunal may 'order on a provisional basis, subject to final determination in an award, any relief which the arbitral tribunal would have power to grant in an award . . . '.
[36] In fairness, England retains certain subjective advantages over these other forums. England's common law heritage and its western values may be particularly attractive to technology companies, particularly those based in the US, which do not want to risk the uncertainty of arbitrations in non-English-speaking civil law countries, or those with an authoritarian rule.