Consent in International Arbitration Oxford International Arbitration Series

Examining the notion, nature, and extent of consent in both commercial arbitration and investment arbitration, this book provides practitioners and academics with a thorough, case-related analysis of an issue which raises many questions. Whilst considering the evolution of arbitration and its consensual nature - enlargement of the parties' freedom to consent to arbitration, and development from commercial arbitration to investment arbitration - it addresses important theoretical questions to offer practical solutions. These include: how consent to arbitrate is expressed and when mutual consent to arbitration is reached; which law shall govern the arbitration agreement or, more particularly, consent as an element of the substantive validity of it; and, conversely, according to which law will a possible lack of consent be judged; how consent should be interpreted; which relationship exists between consent as part of the substantive validity of an arbitration agreement and its formal validity; which, if any, are the implied terms when consenting to arbitration; how consent to arbitrate influences procedural aspects (counterclaims, joinder, consolidation), and which solutions adopted by treaties, national laws or arbitration rules are, or would be, the most respectful of parties' consent in this respect; what in investment arbitration is the relationship between consent and most-favoured-nation clauses or the influence of umbrella clauses. The book includes original arguments and puts forward new suggestions with regard to the changeable consensual character of arbitration. It also provides a particular focus on problems that frequently arise in practice of international arbitration, for example issues related to complex multiparty arbitration and to jurisdictional questions in investment arbitration.

Introduction. PART I: THE CONSENSUAL NATURE OF ARBITRATION. 2. The evolution of arbitration and its consensual nature. 3. Capacity, restrictions, and limitations to consent to arbitration. 4. The juridical nature of arbitration with particular regard to its consensual nature. 5. The multiple facets of consent to arbitration and the determination of jurisdiction. PART II: CONSENT IN COMMERCIAL ARBITRATION. 6. The valid reaching of mutual consent to arbitration. 7. Scope and interpretation of consent to arbitration. 8. Consent to arbitration with a perceived reduced consensual character. 9. Extension of consent to arbitration. 10. Consent to arbitration related to procedural mechanisms. PART III: CONSENT IN INVESTMENT ARBITRATION. 11. Expression and reaching of consent to arbitration. 12. The applicable law and interpretation of consent. 13. Consent and the jurisdiction. 14. The scope of consent in investment arbitration. 15. Conclusion. Bibliography. Index.

Dr Andrea Marco Steingruber is an attorney-at-law in Switzerland and also admitted as a Solicitor (non-practising) in England and Wales. He studied law at the Universities of Berne, Edinburgh and London and business administration/economics at the University of St. Gallen. He concluded his studies in Berne with the admission to the Bar of Berne and he obtained his LLM in Commercial law from the University of Edinburgh (with distinction), and his PhD degree from Queen Mary, University of London.