The thrust of this article is to examine a contemporary international arbitration process in commercial and investment cases, specifically the interplay of common law and civil law elements in the taking of evidence. It begins with a survey of the provisions of the most popular international arbitration instruments, including international arbitration rules and IBA Rules on the Taking of Evidence in International Arbitration. Following the discussion of some relevant examples of international arbitration instruments, the author tries to answer the question whether these instruments, in their current form, support the popular thesis that the international arbitration process has become largely harmonized. In trying to verify this thesis, the article also goes beyond the text of international arbitration instruments and considers the influence of the cultural biases of international arbitration actors.
One of the most significant changes in modern arbitration rules is the adoption of emergency arbitrator proceedings. These proceedings were introduced in order to provide a party in need of urgent interim measures before the constitution of an arbitral tribunal with an additional option besides going to state courts. In emergency arbitrator procedures such a party may seize an emergency arbitrator to grant the requested urgent relief. This article provides the Polish perspective on the effectiveness of emergency arbitrator proceedings, given that the Polish law is silent on the institution of emergency arbitrator and the possible recognition and enforcement of the decisions of an emergency arbitrator. The article analyses the Polish regulations on interim measures, together with their enforcement, by comparing the relationship, similarities and divergences between an arbitral tribunal, a state court, and an emergency arbitrator. This brings us to the conclusion that the existing legal framework as to the enforcement of interim measures issued by an arbitral tribunal provides a solid foundation for drawing an analogy to the recognition and enforcement of such orders granted by an emergency arbitrator. Thus, the provisions on enforcement of arbitral tribunal’s orders per analogiam allow for the recognition and enforcement of emergency arbitrators’ decisions on interim measures in Poland.
The feature that most attracts private parties from different states to referring their dispute to an arbitral tribunal is the flexibility of the procedure. However, the differences between arbitration and court litigation are not only procedural, but they concern the substance of the parties’ cases. This is because in the realm of international arbitration the law applicable to the merits of the case is determined according to other provisions than the statutory conflict of laws rules. Depending on the arbitration law of the seat, the entire private international law statute can be captured in a single provision – “absent the parties’ choice, the arbitral tribunal shall apply the rules of law which it determines to be appropriate”. It follows that arbitral tribunals, unlike state courts, are not bound by the conflict of laws rules of the forum. What’s more, the merits of a dispute submitted to arbitration may be governed not only by some national body of law (e.g. the Polish Civil Code) but also by a non-state, nonnational set of provisions – “rules of law” (e.g. the UNIDROIT Principles of International Commercial Contracts). The aim of this article is to analyze how the parties and tribunals may make use of their autonomy in determining the law applicable to a dispute. Furthermore it examines whether there are any limits thereto in light of the Rome I Regulation.