Obstructionist behavior in international commercial arbitration
legal analysis and measures available to the arbitral tribunal
Description
Arbitration is still a time- and cost-efficient, professional way of resolving cross-border disputes. However, its advantages seem to vanish if one party is obstructive and tries to delay or even sabotage the proceedings. For example, a party may initiate state court proceedings in violation of the arbitration agreement, refuse to pay the advance on costs or fail to follow a document production order of the arbitral tribunal. This work first deals with the obligations that arise from an arbitration agreement. Subsequently, the author introduces 'obstructionist behavior' as a generic term and identifies situations in which, according to case law, mere tactical behavior turns into obstructionist behavior. Finally, the author extensively discusses measures against obstructionist behavior such as adverse inferences, interim measures and astreintes. The author examines the jurisdictions of Switzerland, England, the US and France as well as the established arbitration rules. As this work relies to a substantial extent on unpublished ICC arbitral awards, the author provides a valuable insight in arbitral tribunals' dealings with obstructionist parties.
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