The doctrine of compétencecompétence in international commercial arbitration

HO CHI MINH UNIVERSITY OF LAW
FACULTY OF INTERNATIONAL LAW
-----------***------------

NGUYEN VU THUY QUYNH
Student ID: 1751101030127

THE DOCTRINE OF COMPÉTENCECOMPÉTENCE IN INTERNATIONAL
COMMERCIAL ARBITRATION
BACHELOR’S THESIS
School Year: 2017 - 2022

Supervisor:
PhD. Le Thi Ngoc Ha

Ho Chi Minh City – 2022


DECLARATION

The Author declares that the present thesis is the result of the Author’s own
independent work and research, done under the supervision of PhD. Le Thi Ngoc Ha.
In any parts of the work where sources are used, these sources are listed in the
bibliography and are clearly identified as references. The Author shall take full
responsibility for this declaration.


TABLE OF CONTENTS
INTRODUCTION .....................................................................................................1
CHAPTER 1. COMPÉTENCE-COMPÉTENCE IN INTERNATIONAL
COMMERCIAL ARBITRATION – ARBITRATORS’ POWER TO RULE

ON THEIR OWN JURISDICTION ........................................................................1
1.1

International Commercial Arbitration......................................................1

1.1.1

Definition and A Brief History of “Arbitration” .................................... 1

1.1.2

Definition of “International” ................................................................... 4

1.1.3

Definition of “Commercial” ................................................................... 7

1.1.4

Benefits of International Commercial Arbitration .................................. 9

1.2
The Arbitrators’ Power to Rule on Their Own Jurisdiction “Compétence-Compétence” .................................................................................12
1.2.1

The Jurisdiction of an Arbitral Tribunal and Its Power to Rule on Its

Own Jurisdiction ................................................................................................... 12
1.2.2

Arbitrators’ Power to Rule on Their Own Jurisdiction: The

Terminology Issue ................................................................................................ 16
1.2.3

The Foundation of the Arbitrators’ Compétence-Compétence ............ 19

1.2.4

Variations in the Scope of an Arbitral Tribunal’s Power to Rule on Its

Own Jurisdiction ................................................................................................... 22
1.3
Compétence-compétence and Its Interrelation with the Doctrine of
Separability ............................................................................................................26
1.3.1

The Doctrine of Separability in International Commercial Arbitration ...
............................................................................................................... 26

1.3.2

The Interrelation between Compétence-Compétence and Separability 28

CHAPTER CONCLUSION ...................................................................................29
CHAPTER 2. VARIOUS APPROACHES TO THE DOCTRINE OF
COMPETENCÉ-COMPETENCÉ IN INTERNATIONAL CONVENTIONS
AND DIFFERENT NATIONAL REGIMES .......................................................31
1.1
The New York Convention on the Doctrine of CompétenceCompétence............................................................................................................31

1.1.1

Introduction ........................................................................................... 31

1.1.2

The Doctrine of Compétence-Compétence under the New York

Convention ............................................................................................................ 32


1.1.3
1.2

Concluding Remarks............................................................................. 36
The Model Law on the Doctrine of Compétence-Compétence..............36

1.2.1

Introduction ........................................................................................... 36

1.2.2

The Doctrine of Compétence-Compétence under the Model Law ....... 37

1.2.3

Concluding Remarks............................................................................. 42

1.3

French Law on the Doctrine of Compétence-Compétence ....................42

1.3.1

The Legal Framework for International Commercial Arbitration in

France

42

1.3.2

The Doctrine of Compétence-Compétence in France .......................... 44

1.3.3

Concluding Remarks............................................................................. 48

1.4
1.4.1

English Law on the Doctrine of Compétence-Compétence ...................49
The Legal Framework for International Commercial Arbitration in

England 49
1.4.2

The Doctrine of Compétence-Compétence in England ........................ 51

1.4.3

Concluding Remarks............................................................................. 57

CHAPTER CONCLUSION ...................................................................................57
CHAPTER 3. THE VIETNAMESE APPROACH TO THE DOCTRINE OF
COMPÉTENCE-COMPÉTENCE AND A PROPOSAL FOR REFORM .......59
1.1
1.1.1

Vietnam on the Doctrine of Compétence-Compétence ..........................59
Regulatory Framework for International Commercial Arbitration in

Vietnam 59
1.1.2

The Doctrine of Compétence-Compétence in Vietnam ....................... 61

1.1.3

Concluding Remarks............................................................................. 66

1.2

A Proposal for Reform in Vietnam ..........................................................67

CHAPTER CONCLUSION ...................................................................................68
THESIS CONCLUSION ........................................................................................70
BIBLIOGRAPHY ...................................................................................................71

LIST OF ABBREVIATIONS

1923 Geneva

Geneva Protocol on Arbitration Clauses of 1923 (entered

Protocol

into force on 28 July 1924)

1927 Geneva

Geneva Convention on the Execution of Foreign Arbitral

Convention

Awards of 1927 (entered into force on 26 September
1927)

1996 Act

1996 English Arbitration Act

ADR

Alternative Dispute Resolution

Decree 166

Decree No. 116/1994/ND-CP on the Organization and
Activities of Economic Arbitration dated 05 September,
1994

e.g.

Exempli gratia, “for example”

et al.

And others

et seq.

Et sequential, “and the following”

etc.

Et cetera

European

European Convention on International Commercial

Convention

Arbitration (entered into force on 07 January 1964)

fn.

Footnote

i.e.

Id est, “that is”

Ibid.

Ibidem, “in the same book or passage”


ICA

International Commercial Arbitration

ICSID Convention

Convention on the Settlement of Investment Disputes
Between States and Nationals of Other States of 1965
(entered into force on 14 October 1966)

infra

Below

ISCID

International Centre for the Settlement of Investment
Disputes

LCA

Law 54/2010/QH12 titled Law on Commercial Arbitration
dated 17 June 2010

Model Law

UNCITRAL Model Law on International Commercial
Arbitration (1985), with amendments as adopted in 2006

NAL

French New Arbitration Law, contained in Decree No.
2011-48 of 13 January 2011, Article 2 amending the
French Code of Civil Procedure (1981), Book IV, Title I

New York

Convention on the Recognition and Enforcement of

Convention

Foreign Arbitral Awards (New York, 1958) (entered into
force on 7 June 1959)

Ordinance No.08

Ordinance No. 08/2003/PL-UBTVQH titled the Ordinance
on Commercial Arbitration dated 25 February 2003

p.

Page

Para.

Paragraph

Paras.

Paras Paragraphs

pp.

Pages


supra

Above

UNCITRAL

United Nations Commission on International Trade Law

Vice versa

The other way around

INTRODUCTION
1.

The Rationale of the Thesis
With the speed of globalization, international commerce is expected to develop

at a remarkable rate. Naturally, with international commerce comes international
commercial disputes. Basically, these are disputes that have a commercial nature and
involve one or more foreign elements (the different nationalities of the parties, the
contract needed to be executed in a foreign country, etc.). However, the resolution of
international commercial disputes may not be an easy task, considering how in
national court proceedings, the control exercised by a court is limited to national
borders only. As a result, a more effective alternative to court proceedings needed to
emerge, thus the rise of ICA. Basically, ICA offers business parties benefits that court
litigation otherwise lacks.
Nevertheless, for ICA to really prosper, it needs to be supported by a strong
legal framework, with established rules and regulations designed to promote the
efficacy of the arbitral process, as well as the recognition and enforcement of
arbitration agreements and arbitral awards. One of such rules, and arguably one of
the most important, is the so-called doctrine of compétence-compétence. This
doctrine works by granting arbitrators the power to rule on their own jurisdiction,
thus greatly enhancing arbitral efficacy an overall fairness of the arbitral process.
Nonetheless, despite being one of the most important, this doctrine is also one of the
most contentious rules in ICA. The doctrine is a recurring topic for discussion in legal
scholarship. In practice, countries have also taken diverging approaches to this
doctrine, which further stirs up the discussion. Yet, it appears that few have discussed
the application of this doctrine within the legal framework for arbitration in Vietnam.
Consequently, given the importance of this topic in the context of ICA, the
Author finds it necessary for there to be a more in-depth study into the theoretical
framework and policy concerns behind the doctrine of compétence-compétence, as

well as its varied recognition in prominent international arbitration documents and


jurisdictions, in order to properly assess the Vietnamese approach to this
“controversial” doctrine. The present thesis is made to achieve this very aim.
2.

Literature Review
Based on the Author’s research, there have been a considerable number of

comparative studies on the topic of the doctrine of compétence-compétence in ICA.
Some of the most notable ones are as follows.
Gaillard, E., and Savage, J., eds., Fouchard Gaillard Goldman on International
Commercial Arbitration, Hague: Kluwer Law International, 1999 – This book is an
important textbook for the study of ICA. Being one of the most fundamental rules of
ICA and of arbitration in general, the doctrine of compétence-compétence frequently
comes up throughout the book and is particularly discussed at length in Chapter III
of the book. In particular, the recognition, basis, and meaning of the doctrine of
compétence-compétence is thoroughly considered on a comparative basis.
Born, G., Chapter 6: International Arbitration Agreements and Compétencecompétence, International Commercial Arbitration, Kluwer Law International, 2009.
The book itself is also a quintessential for the study of ICA – The book has an entire
chapter dedicated to the comprehensive study, at both a theoretical and practical level,
of the compétence-compétence doctrine.
Gaillard, E., and Banifatemi, Y., Negative Effect of Compétence-compétence:
The Rule of Priority in Favour of the Arbitrators, Enforcement of Arbitration
Agreements and International Arbitral Awards: The New York Convention in
Practice, 2008, pp.257-273 – This work touches upon the negative effect of the
doctrine of compétence-compétence and the policy considerations behind it. In
particular, the work refers to “the principle of compétence-compétence” and that such
a principle necessarily has a dual function: a positive and a negative.

Park, W., The Arbitrator's Jurisdiction to Determine Jurisdiction, Boston
University School of Law Public Law & Legal Theory Paper No. 17-33, 2007 – This
paper gives a fascinating perspective on the doctrine of compétence-compétence and
its implications on arbitral jurisdiction. The provides a thorough introduction into the


concept of compétence-compétence – i.e., the arbitrator’s jurisdiction to determine
jurisdiction by explaining the limits of the language used, how it can have different
meanings and what implications each meaning carries.
The study on the compétence-compétence doctrine in Vietnam on a comparative
level is relatively limited. It is rarely the main topic of but rather only forms a part of
a broader study on the topic of arbitration. The most notable comparative study is one
by Le Thanh Hieu, and Ton Nu Thanh Binh, Compétence-compétence Doctrine in
Vietnam – A Comparative Study, ALSA Academic Journal 2018, no. AJLS 2018/19,
2018, 3-15. This piece is one of the rare works that focuses on the application of the
doctrine of compétence-compétence in Vietnam. It points out the shortcomings in the
Vietnamese approach, provides a brief comparative study of the different approaches
to this doctrine in certain jurisdictions, and concludes by advancing several proposals
to tackle the problems of the Vietnamese approach. Nevertheless, with the content of
only 12 pages, this study can hardly be comprehensive.
Although there have been many comparative studies on the doctrine of
compétence-compétence on an international level, the number of studies with a focus
on the approach to the doctrine of compétence-compétence in Vietnam is notably
scarce. Thus, the Author believes that a comparative study in the form of a thesis on
the doctrine of compétence-compétence in ICA with a critical assessment on the
Vietnamese approach will be valuable to gain insights into how Vietnam conforms
to, or negates from, international practice with regard to arbitral jurisdiction in ICA.
3.

The Aim of the Thesis

The ultimate aim of the thesis is to be able to critically evaluate and identify the

possible inadequacies in the Vietnamese approach to the doctrine of compétencecompétence in the context of ICA and how it can be improved using the experience
drawn from the other approaches discussed in the study.
In order to achieve this purpose, the thesis performs the following tasks:


First, the practice of ICA will be discussed, followed by a study into the concept
of arbitral jurisdiction and the arbitrators’ power to rule on their jurisdiction – the
doctrine of compétence-compétence.
Second, a comparative study into the different approaches to the doctrine of
compétence-compétence under the selected international documents and national
regimes. Findings will be drawn, which shall provide a basis for the analysis and
evaluation of the Vietnamese approach to the compétence-compétence doctrine.
Finally, an analysis of the Vietnamese approach will be presented, in which
comparisons will be made with the previously analyzed approaches to reveal the
limitations of the current approach in Vietnam. Subsequently, based on the
experiences learned from prior findings, suggestions to overcome the shortcomings
in the Vietnamese approach on the doctrine of compétence-compétence will be
offered.
4.

Subject-matter and Scope of the Thesis

4.1. Subject-matter of the Thesis
The subject matter of the present thesis is the doctrine of compétencecompétence and, particularly, the extent to which this doctrine is endorsed within
international documents and various legal frameworks, and especially within the
Vietnamese legal framework.
In particular, the research on the subject matter in the thesis shall be studied
through the regulations and practices relating to the doctrine of compétencecompétence under the New York Convention, the Model Law, French arbitration law,

English arbitration law, and Vietnamese arbitration law.
4.2. Scope of the Thesis
The scope of the thesis is limited to the doctrine of compétence-compétence in
ICA and its variations in scope of application as recognized and adopted in different
jurisdictions’ approach to the doctrine. More specifically:
The analysis carried out in this thesis is limited to consensual arbitration
between private parties. Thus, statutory and other obligatory forms of arbitration, as


well as arbitration where at least of the parties is a State will not be discussed at
length. Furthermore, the thesis primarily deals with arbitrations that are
“international” and “commercial”. Unless indicated otherwise, reliance will be put on
the definitions of the terms as provided for in the Model Law.
Regarding the theoretical and conceptual aspects, the thesis is focused on the
study of the basic concepts of ICA and arbitral jurisdiction, as well as several legal
points of view about the foundation/theoretical framework and the various scopes of
application of the compétence-compétence doctrine.
On the comparative study of the different approaches to the doctrine of
compétence-compétence, the Author focuses on the doctrine of compétencecompétence in the New York Convention, Model Law, the 1996 English Arbitration
Act, the French 2011 New Arbitration Law, and the Vietnamese 2010 Law on
Commercial Arbitration and its supplementing documents.
5.

Research Methodologies
This thesis uses primarily the following research methodologies.
Synthesis - This methodology is used to synthesize legal documents and

scholarship opinions to clarify the theoretical basis and to have both an overall and
in-depth understanding of the theoretical concepts discussed within the thesis. The
method is also be used to draw conclusions and experiences from legal analyses and

comparisons. Basically, this is the main method which is used throughout the three
chapters of the thesis.
Comparative analysis - The comparative analysis methodology is utilized
when conducting research and analyzing international legal documents such as
treaties and national law of some countries on the doctrine. This method will
primarily be used in Chapters 2 and 3 of the thesis.
Case Study - The methodology of case analysis is used to identify how certain
legal provisions or principles are applied in specific circumstances. In other words,
this method lends practical insights into the application of specific provisions or rules.


The case study method is used in this thesis when the study on the different
approaches to the doctrine of compétence-compétence is undertaken.
The above methodologies are applied either in combination or independently
throughout the thesis to examine and clarify the issues so that ultimately, the purpose
of the thesis can be achieved.
6.

The Significance of the Thesis
The doctrine of compétence-compétence is an important rule within the legal

framework for ICA, and for arbitration in general. Given the diverging approaches in
different national legal orders and the constant debate between scholars on the scope
of the doctrine, many comparative studies have been undertaken to address the issues
and evaluate the legitimacy of the different approaches in national arbitration laws.
Nevertheless, a thorough study on the recognition of the compétence-compétence
doctrine within the jurisdiction of Vietnam has rarely been carried out. Thus, this
thesis fills that gap through a comparative study of the compétence-compétence
doctrine in which the Vietnamese approach to this important doctrine is assessed and
compared against other, more developed, arbitration legal frameworks. The findings

and suggestions drawn from this thesis will be particularly useful for legislators to
consider when amending or supplementing the current provisions concerning the
doctrine of compétence-compétence within the Vietnamese legal framework for
arbitration.
Furthermore, this thesis provides a simplified presentation of the concepts of
arbitral jurisdiction and the doctrine of compétence-compétence in the context of
ICA, which will be helpful for newly-started researchers in the field as well as for
law students to better grasp the essence of these concepts.
Finally, since this thesis is the first of the few studies which carefully analyzes
the approach to the doctrine of compétence-compétence in Vietnam, it is hoped to
provide a basis for the more in-depth studies into the doctrine itself and into the
concept of arbitral jurisdiction in general.
7.

The Structure of the Thesis


This thesis comprises three chapters as follows:
Chapter 1. Compétence-Compétence in International Commercial
Arbitration – Arbitrators’ Power to Rule on Their Own Jurisdiction
Chapter 2. Various Approaches to the Doctrine of CompetencéCompetencéin International Conventions and Different National Regimes
Chapter 3. The Vietnamese Approach to the Doctrine of CompétenceCompétence and A Proposal for Reform


1

CHAPTER 1. COMPÉTENCE-COMPÉTENCE IN INTERNATIONAL
COMMERCIAL ARBITRATION – ARBITRATORS’ POWER TO RULE ON
THEIR OWN JURISDICTION
In the first Chapter of this thesis, the thesis shall begin by introducing the

concept of international commercial arbitration (ICA). From such point of departure,
the concept of arbitral jurisdiction and the widely recognized doctrine of compétencecompétence – the power of arbitrators to rule on their own jurisdiction will be
explored and analyzed. Finally, since the doctrine of compétence-compétence has
frequently been conflated with the doctrine of separability (another important
doctrine in modern ICA), the distinction between them will also be drawn. In sum,
Chapter 1 acts as a knowledge base to provide a strong foundation for the more
intensive research into the doctrine of compétence-compétence in the following
Chapters.
1.1

International Commercial Arbitration

1.1.1 Definition and A Brief History of “Arbitration”
There is currently no single universally accepted definition of arbitration. For
example, in France, arbitration has traditionally been defined as:
…a device whereby the settlement of a question, which is of interest for
two or more persons, is entrusted to one or more other persons - the
arbitrator or arbitrators - who derive their powers from a private
agreement, not from the authorities of a State, and who are to proceed
and decide the case on the basis of such an agreement.1 [emphasis added]
The German Federal Supreme Court - Bundesgerichtshof - has also defined
arbitration as:
…a private court based on party autonomy comprising one or more
arbitrators, to whom, by means of private agreement, the resolution of

1

Gaillard, E., and Savage, J., eds., Fouchard Gaillard Goldman on International Commercial Arbitration,
Hague: Kluwer Law International, 1999, 9. (“Gaillard E, Savage J (1999), supra at fn.1”)

2

legal disputes is transferred instead of the [national] courts.2 [emphasis
added]
Generally, although there are certain variations for the definition of
“arbitration”, it can be observed that virtually all authorities accept arbitration to be a
consensual process where parties agree to submit their disputes to a private, nongovernmental adjudicator to render a final and binding decision resolving the said
disputes.3 Thus, the key characteristics of arbitration include: an agreement/consent
to arbitrate, non-governmental decision-makers - arbitrators, the existence of a
dispute falling within the jurisdiction of the arbitrators, and a final and binding award
rendered by the arbitrators (generally non-appealable). Essentially, arbitration is an
effective form of ADR which derives its existence from the agreement of the parties
and an alternative to litigation in courts, alongside other forms of ADR such as
mediation and conciliation, expert determination, mini-trials, etc.
Notably, arbitration had existed long before the establishment of any laws or
courts. In fact, arbitration can be traced back to “the beginning of recorded history”4
and can be found “in the most primitive society, as well as in modern civilization”. 5
One way or another, men had, for a long time, resorted to arbitration to resolve their
disputes. At first, there was no legal framework to govern the arbitral process. Still,
arbitration had been very common among members of various trade and specialist
associations.6 The process was, and perhaps still largely is, relatively simple, parties
having a dispute - two merchants, for example, make an agreement with each other
to submit their dispute to one or more private individuals - also known as
“arbitrator(s)” - to render a decision resolving the dispute after taking into account

Susler, O., Jurisdiction of Arbitration Tribunals: A Comparative Study, Doctor’s Thesis, La Trobe
University, 2012, p.11. (“Susler O (2012)”)
3
Born, G., International Arbitration: Law and Practice, Kluwer Law International, The Netherlands, 2012,

p.2. (“Born G (2012)”)
4
Born, G., International Commercial Arbitration, Kluwer Law International, 2009, p.63. (“Born G (2009)”)
5
Emerson, F., History of Arbitration Practice and Law, 19 Clev. St. L. Rev. 155, 1970, p.156.
6
Onyema, E., International commercial arbitration and the arbitrator’s contract, Routledge, 2010, p.2.
(“Onyema E (2010)”). Examples of such trade associations are the Grain and Feed Trade Association;
London Metal Exchange; The Federation of Oils, Feeds & Fats Associations; and The London Maritime
Arbitrators Association.
2


3

the facts and arguments of both sides. That decision would then become final and
binding on the parties, not because of the coercive power of any state authorities, but
because the parties agreed for it to be so and this was what was expected of them in
their community.7
Whilst there have been periods of lesser, as well as greater, judicial and
legislative support for arbitration, the overriding needs of the business community in
having an effective method to solve their commercial disputes, as well as the
exceptional advantages of the arbitral process, have, in the end, prevailed over the
hostility towards arbitration. 8 Gradually, arbitration received more and more
legislative support on the matter. It was in 1923, following the end of World War I,
that the first protocol – the 1923 Geneva Protocol - addressing arbitration was opened
for signature. 9 This was the first time the international community agreed upon a
multilateral text on arbitration. Subsequently, in 1959, what may be considered one
of the cornerstones for contemporary international arbitration10 - the 1958 New York
Convention, 11 took effect, allowing international arbitration to really become

recognized as an established method of international dispute resolution. Although the
title of the New York Convention may mislead people to think that it only concerns
the recognition and enforcement of arbitral awards, it actually imposes an obligation
on national courts around the world to recognize and enforce both arbitration
agreements and arbitration awards. 12 Years later, the 1985 Model Law was approved

See Onyema E (2010), supra at fn.7, p.2. “The disputing parties voluntarily complied with the arbitrator’s
decision. Such compliance resulted possibly from the fact that the disputing parties as members of the same
trade association […] judged compliance more commercially expedient. Each trade association also had ways
of ‘punishing’ a defaulting judgment debtor.”
8
For a more detailed discussion on the different shifts in attitude towards arbitration throughout history, see
Born G (2009), supra at fn.4, pp.7 et seq.
9
The Geneva Protocol recognized that each contracting State must acknowledge the validity of the
arbitration agreement. The 1923 Geneva Protocol had two objectives: Its first and main objective was to
ensure that arbitration clauses were enforceable internationally; the second and subsidiary objective was to
ensure that arbitration awards made pursuant to such arbitration agreements would be enforced in the
territory of the states in which they were made.
10
van den Berg, A., The New York Arbitration Convention of 1958, 1981, p.1. (“van den Berg (1981)”)
11
Information and updates on the status of the Convention can be found at:
last accessed on 28
Jun 2022. At the time of writing, the Convention has more than 170 signatories.
12
New York Convention, Article II.
7

4

by a resolution of UNCITRAL, and later by a U.N. General Assembly resolution in
1985. This piece of statutory instrument was designed with the intention of
harmonizing and reforming the arbitration laws of different countries in the world.13
This was a major success, as the 1985 Model Law (both the original version and the
2006 version with amendments) has been increasingly adopted, or otherwise served
as a model for legislation, in many jurisdictions.14 It has been contended, and perhaps
rightly so, that “if the New York Convention put international arbitration on the world
stage, it was the Model Law that made it a star, with appearances in states across the
world”.15
Throughout history, parties with disputes to be solved have frequently resorted
to arbitration for the advantages it brings over court litigation. This method of dispute
settlement, described as “informal and essentially private and consensual”, 16 has
come to be adopted by not only certain individuals or groups of individuals like
dealers or merchants, but also by major corporations and states on an international
scale.17 It is hence no surprise that, now, with the increase in the globalization of
international trade and investment, arbitration has become the preferred method for
dispute resolution. In fact, in a survey conducted by White & Case in 2021, arbitration
- international arbitration more specifically, was chosen as the preferred method of
solving cross-border disputes by 90% of the respondents.18
1.1.2 Definition of “International”
The term “international” in “international arbitration” is often used to
distinguish the purely “national” or “domestic” arbitrations from those that, in one

13

Redfern & Hunter et al., Redfern and Hunter on International Arbitration, 2009, p.62, para.1.218.
(“Redfern & Hunter et al. (2009”)
14

Information and updates on the status of the Model law can be found at:
last accessed on 28 Jun 2022 28
Jun 2022. At the time of writing, legislation based on the Model Law has been adopted in 118 jurisdictions.
15
Redfern & Hunter et al. (2009), supra at fn.13, p. 63, para. 1.220.
16
Redfern & Hunter et al. (2009), supra at fn.13, p.2, para. 1.05.
17
Ibid.
18
White & Case LLP and Queen Mary School of International Arbitration (2021), 2021 International
Arbitration Survey: Adapting arbitration to a changing world,
last accessed on 28
Jun 2022. More than 1,200 respondents took part in the survey. (“White&Case survey (2021)”)


5

way or another, go beyond borders; or in other words, are “international” or
“transnational”.19 Simply put, international arbitration does not just stay within the
sovereignty of a nation. Furthermore, in reality, some states may have in place more
restrictive rules to regulate domestic arbitrations since there will almost always be an
element of consumer protection in the law governing domestic arbitration.20 Thus, in
order not to disturb local regulation of domestic arbitration matters, in many national
legal frameworks, states may adopt entirely different legislative and/or judicial
regimes to regulate “international” or “foreign” arbitration agreements.21 In addition,
although not provided for expressly, it can be inferred that the New York Convention
only applies to arbitration agreements that have at least some “international” or
“foreign” elements, rather than purely domestic ones.22
Nonetheless, to date, there has been no general agreement on a single definition

of “international arbitration”. For example, Born refers to international arbitration as:
… a means by which international disputes can be definitively resolved,
pursuant to the parties’ agreement, by independent, non-governmental
decision-makers.23 [emphasis added]
At the same time, he also notes that “there are almost as many other definitions
of international arbitration as there are commentators on the subject”.24
Nevertheless, it has been said that the word “international” can be interpreted in
three different ways: (i) the nature of the dispute being “foreign” or “international”,
(ii) the nationality or place of business of the disputed parties being different, and (iii)

Judge Phillip Jessup was the first to coin the term “transnational law” in his Storrs Lecture on
Jurisprudence delivered in 1956 to describe law that regulates activities or actions that transcend national
borders: see Jessup, Transnational Law, Yale University Press, 1956.
20
Redfern & Hunter et al. (2009), supra at fn.13, p. 7, para. 1.22.
21
For example, many jurisdictions nowadays adopt or model its international arbitration law according to the
Model Law. In a few jurisdictions, however, an arbitration legislation can apply to both domestic and
international arbitrations. For example, England’s enactment of the Model Law deleted provisions limiting
the legislation’s application to “international” arbitrations, extending it to all arbitrations. Even then, such
legislation often has specific provisions that treat international and domestic arbitration differently with
regard to particular subjects. See the 1996 Act (English), section 2.
22
See Born G (2009), supra at fn.4, pp. 277 et seq.
23
Born, G., International Commercial Arbitration: Commentary and Materials (Second Edition), Kluwer
Law International, The Hague, 2001, p.1. (“Born G (2001)”)
24
Ibid.
19

6

a combination of the first two meanings, together with a reference to a choice of
foreign place of arbitration.25 The third approach to the meaning of “international”
has been adopted in the Model Law which, by virtue of Article 1(3), provides that, an
arbitration is international if:
(a) The parties to an arbitration agreement have, at the time of the
conclusion of that agreement, their places of business in different States;
or
(b) One of the following places is situated outside the State in which the
parties have their places of business:
(i) The place of arbitration if determined in, or pursuant to, the arbitration
agreement;
(ii) Any place where a substantial part of the obligations of the commercial
relationship is to be performed or the place with which the subject-matter
of the dispute is most closely connected; or
(c) The parties have expressly agreed that the subject-matter of the
arbitration agreement relates to more than one country.26
Here, it can be seen that the Model Law has adopted a rather broad approach to
the definition of international arbitration. Notably, Articles a(3)(b)(i) and 1(3)(c)
allow the parties to turn an otherwise-domestic arbitration “international” by agreeing
among themselves on a foreign seat of arbitration or that the subject matter of the
arbitration agreement “relates to more than one country”. This approach has been
criticized as “too expansive” by some scholars.27 Regardless, ultimately, the question
of whether an arbitration is considered “international” will be subject to the
provisions of the relevant national law.

25

Redfern & Hunter et al. (2009), supra at fn.13, p.8, para.1.28.
UNICTRAL Model Law, Article 1(3).
27
See Born G (2009), supra at fn.4, pp.285-289. Similarly, see Gaillard E, Savage J (1999), supra at fn.1,
pp.52-53, para.103.
26