Good Faith In International Arbitration

Although considered a somewhat ‘hazy’ concept (particularly in common law), good faith may nevertheless be defined as a duty incumbent on a person negotiating or performing an agreement. Thus, it may be understood as obligatory on all parties in the conduct of arbitral proceedings. In this collection of expert chapters, notable jurists and legal academics from around the world fully investigate the multifaceted notion of good faith in international arbitration. All the following aspects of the matter are covered: detailed analysis of good faith in both common law and civil law traditions as reflected in doctrine, scholarship, and case law; good faith implications in treaty interpretation; using good faith as a negative defence against claims or as a positive basis for claims; good faith in the specific field of international investment arbitration; procedural aspects of the parties’ obligation to act in good faith during pre-arbitral negotiations, conciliation, and mediation, as well as during the arbitral proceedings; the duty of arbitrators and arbitral institutions to act in good faith; and the role of good faith in actions to set aside. As an authoritative survey and analysis of how the concept of good faith has been applied in international arbitration – and defined in the case law relevant to it – this matchless book provides invaluable guidance to parties involved in international arbitral proceedings.

Written by a leading legal researcher, this book offers a comprehensive study of the principle, a frequently invoked but rarely analysed aspect of investment arbitration. It is a thorough and expansive study that considers the application of good faith by arbitral tribunals and parties in international investment disputes, encompassing both procedural and substantive aspects of good faith. Expertly negotiating a complex principle, this book diligently follows the arbitral process from jurisdiction through merits and to cost decisions, identifying the various applications of good faith in investment disputes. The author offers detailed analyses of the role of good faith in defining nationality and investor as well as in pre-dispute admissibility requirements. The study then delves into the ways the principle guides parties' arguments and informs tribunals' decisions regarding evidence, substantive protections, and costs. It further addresses the role of good faith in the behaviour of arbitrators and other actors. This is a guide for anyone wishing to understand this important principle that has accompanied the developing system of international investment law.

The past two decades have seen a significant proliferation of trade and investment treaties around the world. States are increasingly negotiating agreements that regulate both trade and investment, such as the Trans-Pacific Partnership Agreement and the Transatlantic Trade and Investment Partnership. The number of investor-state dispute settlement cases is growing dramatically each year, yet states' enthusiasm for investor-state arbitration has become more qualified as concern has intensified that the system can be abused by foreign investors. Good faith is therefore becoming increasingly important as a principle, particularly in the investment context, due to disputes about investor conduct such as corporate restructuring in order to gain the protection of a particular investment treaty regarding an existing or foreseeable dispute, and States' responses to public policy concerns through attempts to modify or terminate investment treaties in the face of ongoing or expected claims. Tribunals adjudicating investment disputes have used the principle of good faith in a haphazard and uncoordinated manner, causing serious problems of uncertainty and inconsistency. In response to these developments, this book contains the first comprehensive and integrated analysis of the treatment of good faith in international investment law, noting the broader implications of good faith in public international law and international trade law.

From the perspective of users of international commercial arbitration, the uncertainties surrounding the application of good faith by an arbitral tribunal create an unwelcome unpredictability. Acknowledging this prevalent situation, this book is the first to study in depth the available international arbitral awards that have applied good faith, thus providing detailed guidance on how this notion is (and can be) applied by tribunals in international commercial arbitration. Moreover, the author proposes a set of deeply informed guidelines for the future application of good faith by arbitral tribunals to both the parties’ contract and the arbitration agreement. This book provides a comprehensive description of the role and scope of good faith under governing laws in key jurisdictions (England, New York, Switzerland, France, Germany, China, Singapore, Hong Kong, Australia, and Canada) as well as under the CISG, the UNIDROIT Principles, and other uniform law and soft law instruments. The book greatly clarifies the source and role of good faith with respect to the following issues surrounding the arbitration agreement: formal validity of the arbitration agreement; incorporation of the arbitration agreement by reference; interpretation of the arbitration agreement; capacity and power of the parties to arbitrate; extension of an arbitration agreement to a non-signatory party; pre-arbitration requirements to negotiate or mediate; and performance of the arbitration agreement. Proposed guidelines for the application of good faith to each of these issues are included, along with useful figures summarizing the content of the obligations to negotiate or mediate in good faith prior to resorting to arbitration as well as the obligation to arbitrate in good faith. By analysing the role and scope of good faith under different national and non-national laws, this book will prove of inestimable value not only by providing invaluable insight into the recourse to good faith by arbitral tribunals but also by providing guidance on how good faith should be applied to the parties’ contract in international commercial arbitration. Arbitrators, as well as users of arbitration, will welcome the clarity on how good faith is applied to the various issues surrounding the arbitration agreement and, in particular, to the pre-arbitration requirements to negotiate or mediate as well as the performance of the arbitration agreement.

This text considers the origin and development of good faith in legal theory and its role as a fundamental principle in international law. It ranges from the origins of the concept and the first manifestations of the legal principle, to recent decisions of international courts and tribunals.

Good Faith in International Investment Arbitration offers a comprehensive study on both the theory and application of the principle of good faith in the international arbitration process. It is an essential book for both practitioners and academics.

There is a great degree of controversy on the proper complexion and role of general principles of law in the international legal order. Opinions range from total rejection of some types of principles to the most enthusiastic endorsement of principles as the necessary oil for the many complex wheels of the legal order. In this book one of the leading public lawyers of his generation explores the concept of good faith and its role in international law. Rather than offer a detailed, comprehensive examination, Kolb aims to map the true points of gravity of the principle of good faith in the international legal order. In so doing, he illustrates how the various legal institutions who operate in the sphere of public international law allow the principle of good faith to unfold.

Now in a fully updated second edition, Rules of Evidence in International Arbitration: An Annotated Guide remains an invaluable reference for lawyers, arbitrators and in-house counsel involved in cross-border dispute resolution. Drawing on current case law, this book looks at the common issues brought up by the evidentiary procedure in international arbitration. Features of this book include: An international scope, which will inform readers from around the world A focus on evidentiary procedure, with extensive case-based commentary and examples Extensive annotations, which allow the reader to locate key precedents for use in practice This book gives essential insight into best practice for practitioners of international arbitration. Readers of this publication will gain a fuller understanding of accepted solutions to difficult procedural issues, as well as the fundamental due process considerations of the use of evidence in international arbitration.