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Practising VirtueInside International Arbitration$
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David D. Caron, Stephan W. Schill, Abby Cohen Smutny, and Epaminontas E. Triantafilou

Print publication date: 2015

Print ISBN-13: 9780198739807

Published to Oxford Scholarship Online: January 2016

DOI: 10.1093/acprof:oso/9780198739807.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 28 September 2020

Pre-Arbitration Procedural Requirements

Pre-Arbitration Procedural Requirements

‘A Dismal Swamp’

(p.227) 14 Pre-Arbitration Procedural Requirements
Practising Virtue

Gary Born

Marija Šćekić

Oxford University Press

This chapter analyses pre-arbitration procedural requirements in international arbitration agreements and investment treaties. Topics discussed include the validity and effects of pre-arbitration procedural requirements; characterization of pre-arbitration procedural requirements—‘admissibility’, ‘jurisdictional’, or ‘procedural’; effects of non-compliance with pre-arbitration procedural requirements; and choice-of-law issues applicable to pre-arbitration procedural requirements. Although designed to enhance the efficiency of the arbitral process, pre-arbitration requirements often produce new disputes of their own, with material and undesirable consequences for the arbitral process. The better view would be to treat requirements to negotiate or conciliate as non-mandatory and aspirational; mandatory pre-arbitration requirements should only be seen as affecting the admissibility of claims, rather than constituting bars to arbitral jurisdiction.

Keywords:   pre-arbitration procedural requirements, international arbitration agreements, investment treaties, compliance, non-compliance

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