Schütze (ed.), Institutional
Arbitration – Commentary, C.H. Beck 2013
By Arian Nazari-Khanachayi,
Frankfurt/M
Arbitration has become one of the most important
dispute resolution mechanisms within the last few decades. More than 70% of all
international (commercial) contracts include an arbitration agreement or clause
(see Wolff, JuS 2009, 108). Of course
this number can only be a speculation since on the one side international
contracts are usually not public and on the other side arbitration proceedings
are supposed to be confidential; therefore, one cannot draw inferences from the
amount of proceedings about the frequency of arbitration agreements or clauses
within international contracts. However, the importance of arbitration
proceedings needs no further comment. Accordingly, it is the case with
institutional arbitration. Institutional arbitration allows the parties to
choose an – often specialized – institution which then would be in charge to – for
example – receive the statement of claim, constitute the tribunal or set up the
proceeding rules (further Schütze,
Chapter I). Therefore, institutional arbitration is to become increasingly
popular; if that has not always been the case. Thus, this commentary edited by Prof. Dr. Dr. h.c. Rolf A. Schütze on
institutional arbitration is perfectly shaped for lawyers/arbitrators who seek
deep insight(s) into some of the world’s most important institutional rules.
Schütze presents a commentary on 14 of the most important
institutional rules worldwide. The work is in English language. As it has
already been stated with regard to his Commentary on Institutional Arbitration
in German language, the quality of this commentary reflects Schütze’s high standing and expertise
within the Arbitration Circle (see Kröll,
NJW 2006, 3696). Furthermore, he has been able to recruit 19 prominent
arbitrators and/or lawyers to comment on each institutional rule
article-by-article. The commentary includes the rules of CIEDAC (China
International Economic and Trade Arbitration), DIAC (Dubai International
Arbitration Centre), DIS (German Institution of Arbitration), ICC
(International Court of Arbitration), ICSID (International Centre for
Settlement of Investment Disputes), KLRCA (Kuala Lumpur Regional Centre for
Arbitration), LCIA (The London Court of International Arbitration), MKAS
(Moscow International Commercial Arbitration Court), SCC (Stockholm Chamber of
Commerce Arbitration), SIAC (Singapore International Arbitration Centre), Swiss
Rules, UNCITRAL Rules, and Vienna Rules.
After an introduction – given by Schütze himself – each Institutional Rule is commented on by the
different authors. Hereby, each commentary includes an outline with margin
numbers which gives an overview about the structure of the followed commentary.
The margin numbers regularly refer to each article of the Institutional Rule.
Thus, the commentary allows retaliating single questions within a legal regime.
Each commentary starts out with a lengthy bibliography and contains a large
number of footnotes. It is noteworthy that the bibliography and the footnotes
do not only contain sources in English but also in German language. Particularly
the DIS-Rules and also references within other rules to German Law require
sources about German Law which are not necessarily available in English
language. This explains the two language approach. Nevertheless, all this does
not influence the clarity in a negative way. In contrary, the reading flow of
English speaking readers is not interfered by this approach. The possibility of
additional research for German speaking readers is yet increased. Therefore,
this approach should be endorsed and retained in following editions. Lastly –
from a formal point of view –, at the end of the work the commentary is rounded
up by a reprint of all commented institutional rules.
From a substantial point of view the work bribes
especially through the experience of the authors of each commentary: e.g. the
commentary on the CIETAC Rules (China) gives a hint to the fact that in PR-China
regularly “contractual arbitration clauses provide that negotiations must have
taken place prior to initiating arbitration proceedings” (Stricker-Kellerer/Moser, in: Schütze (ed.), p. 573). Above such
experienced based know-how each commentary includes a – short – historical part
in which the background of the concerned institution is explained: e.g. Theune states that the German DIS
reformed its regulations with regard to the fact that German law should be
brought “into line with trends in international arbitration and to make Germany
more attractive as a venue of arbitration” (see Theune, in: Schütze (ed.), p. 206). In other cases not only the
historical background is necessary to understand the institutional rules but
also the constitutional background. Where that is the case even this background
is briefly described, as for example with regard to the Swiss rules the Swiss
federal constitutional law is introduced (see Karrer, in: Schütze (ed.), p. 363 et seq.). Furthermore, some of
the commentaries include a chart with a listing of the costs: i.e. with regard
to the amount of dispute the administrative fee and/or the fee for the Chairman
and/or Sole Arbitrator and/or taxation fee are listed up (compare f.i. Hirth, in: Schütze (ed.), p. 661 et
seq.; see also Öhrström, in: Schütze
(ed.), p. 860 et seq.). Hereby, the practitioner who has to deal in his
everyday business with institutional rules is able to understand and look up
single substantial questions. Finally, it should be mentioned that each
commentary includes a recommended standard clause (compare f.i. Klötzel, in: Schütze (ed.), p. 680 et
seq.; Happ, in: Schütze (ed.), p.
930; Konrad/Hunter, in: Schütze
(ed.), p. 429). Experienced Arbitrators and Lawyers know the difficulties which
can arise out of an inadequate formulated clause. Therefore, these recommended
standard clauses with regard to the special requirements of each institutional
rule are highly valuable.
The commentary on institutional arbitration by Prof. Dr. Dr. h.c. Rolf A. Schütze is on
the one hand very precise and on the other hand a work of wide scope. It covers
14 of the worlds’ most important rules on institutional arbitration. Thus,
practitioners, i.e. Lawyers, Arbitrators and Chairmen, should not be negligent
with asking this commentary on questions arising in their everyday business.
But also scientists might be able to benefit from reading this work since the
highly qualified and experienced authors who are involved in this commentary
can provide readers with new insights. For all this reasons, Schützes’ commentary will set up new
standards within the international discussion on institutional arbitration. Hence,
this work must be recommended to both practitioners and scientists involved in
international arbitration on national as well as international level.