ADR International Arbitration Standards 3 — Questions and Answers
Question 1: Under the New York Convention (Article V(1)(b)), an award may be refused recognition if the party against whom enforcement is sought was:
- Represented by a non-local attorney during the proceedings
- Not given proper notice of arbitrator appointment or was unable to present its case (Correct answer)
- Dissatisfied with the arbitrators' interpretation of the contract
- A state entity rather than a private commercial party
Correct answer: Not given proper notice of arbitrator appointment or was unable to present its case
Article V(1)(b) of the New York Convention permits refusal of enforcement when a party was not given proper notice or was unable to present its case, reflecting due process concerns.
Question 2: In international arbitration, what is the purpose of an 'emergency arbitrator' mechanism offered by institutions like ICC and SIAC?
- To replace a deceased or incapacitated arbitrator within 24 hours
- To grant urgent interim relief before the full arbitral tribunal is constituted (Correct answer)
- To fast-track an entire arbitration to a final award within 30 days
- To mediate between parties before formal arbitration begins
Correct answer: To grant urgent interim relief before the full arbitral tribunal is constituted
Emergency arbitrator provisions allow parties to obtain urgent interim measures (e.g., asset freezes) before the full tribunal is in place.
Question 3: The UNCITRAL Transparency Rules, adopted in 2014, apply primarily to which category of arbitration?
- Commercial arbitration between two private companies
- Investor-State arbitration under treaties concluded after April 1, 2014 (Correct answer)
- Domestic arbitration within UNCITRAL member states
- Maritime and shipping arbitration governed by CMR rules
Correct answer: Investor-State arbitration under treaties concluded after April 1, 2014
The UNCITRAL Transparency Rules establish public access to documents and hearings in treaty-based investor-state arbitrations commenced after April 1, 2014.
Question 4: Which of the following best describes 'consolidation' in international arbitration?
- Combining multiple related arbitrations into a single proceeding (Correct answer)
- Merging an arbitration with a parallel court litigation
- Appointing a single arbitrator instead of a three-member tribunal to save costs
- Converting an arbitral award into an enforceable court judgment
Correct answer: Combining multiple related arbitrations into a single proceeding
Consolidation joins two or more separate arbitrations—often arising from related contracts or parties—into one unified proceeding to avoid inconsistent awards and reduce costs.
Question 5: Under Article 17 of the UNCITRAL Model Law (2006 amendments), an arbitral tribunal has authority to order interim measures. Which of the following is NOT listed as a condition for granting such measures?
- Harm not adequately reparable by damages is likely if the measure is not ordered
- There is a reasonable possibility that the requesting party will succeed on the merits
- The requesting party provides security for costs of the measure (Correct answer)
- The balance of harm favors granting the measure
Correct answer: The requesting party provides security for costs of the measure
The Model Law does not require the requesting party to provide security as a mandatory condition; the tribunal may but need not require security.
Question 6: What does 'most-favored-nation' (MFN) treatment mean in the context of investment treaty arbitration?
- The investor's home country receives preferential trade tariffs
- An investor may import more favorable protections from a third-party treaty the host state has concluded (Correct answer)
- The arbitral tribunal must rule in favor of the investor over the state
- The host state can invoke procedural advantages from other treaties against the investor
Correct answer: An investor may import more favorable protections from a third-party treaty the host state has concluded
MFN clauses in investment treaties allow investors to borrow more advantageous substantive or procedural protections granted by the host state to investors from third countries.
Question 7: The Mauritius Convention on Transparency enables the UNCITRAL Transparency Rules to apply to investor-state arbitrations under treaties concluded before April 1, 2014. How does this work?
- States automatically become bound once they ratify the Mauritius Convention
- Both the investor's home state and the host state must consent through ratification or opt-in (Correct answer)
- Only the host state needs to ratify; investor consent is not required
- The investor must separately sign the Mauritius Convention for it to apply
Correct answer: Both the investor's home state and the host state must consent through ratification or opt-in
The Mauritius Convention requires both treaty parties (i.e., the states involved) to ratify or otherwise accept it before the Transparency Rules apply to pre-2014 treaties.
ADR International Arbitration Standards 3
Under the New York Convention (Article V(1)(b)), an award may be refused recognition if the party against whom enforcement is sought was: