Bilateral Investment Treaty (BIT)

An international agreement between two states. BIT’s establish the terms and conditions regulating foreign investment made by nationals of the signatories in each other’s states.

Bifurcation

The act of separating ongoing arbitration proceedings n into two or more separate proceedings.

Case appraisal

The process in which an individual (usually a dispute resolution practitioner, attorney, expert or otherwise) reviews a dispute and provides an assessment of the relevant facts and the possible means of resolving the dispute.

Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention)

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards was adopted by a United Nations diplomatic conference in June 1958 with the aim of ensuring the enforcement of foreign arbitral awards globally. In this regard, the New York Convention is an important legal instrument that renders the enforcement of arbitral awards possible in 164 contracting states.

Chairman (Arbitration)

Also referred to the as the President of the Tribunal, the Chairman is the arbitrator appointed by the two party-appointed arbitrators or arbitration institution.

Claimant

The party initiating arbitration proceedings.

Commercial arbitration

Arbitration between two or more parties to a commercial contract.

Conciliation

A form of alternative dispute resolution wherein a neutral third-party is appointed by the disputing parties to draft a non-binding proposal to resolve the dispute.

Confidentiality Obligation

The parties’ contract or the applicable institutional rules may contain a provision which obliges the people involved in the arbitration or contract to keep certain information, such as the existence of the contract or the initiation of arbitral proceedings, confidential within a restricted group. One must distinguish between confidentiality and privacy.

Consolidation of Claims

The act of combining multiple arbitration proceedings into one arbitration.

Cooling-Off Period

Parties to a dispute agree or are required by a provision within a treaty to not commence arbitral proceedings before a certain amount of time has passed since the notification of the dispute. The parties shall use this time to attempt to reach an amicable settlement.

Cost allocation

The arbitral tribunal’s authority to decide which party shall bear the costs associated with an arbitration. Costs in international arbitration usually include administrative costs for the arbitration (e.g. fees paid to the arbitral institution and arbitral tribunal, etc.) and legal costs (e.g. counsel fees, travel expenses, expert fees, etc.).

Counterclaim

A claim brought by the respondent in response to the claimant’s initial claim in the arbitration proceedings.

Damages

The amount of money claimed by or awarded to one party for the compensation of loss or injury.

Default Arbitral Award

A decision made by an arbitral tribunal when a party no longer takes part in ongoing arbitration proceedings.

Disclosure Obligation

An arbitrator’s obligation to make enquiries with regard to any existing relations which have to be disclosed so as to comply with the requirements of independence and impartiality. The IBA Guidelines on Conflict of Interest provide a non-exhaustive list of relations which an arbitrator is required to disclose. These situations are categorized into lists according to their requirement of disclosure and waivability (green, orange and red list).

Dispute Resolution

A general term encompassing the various means of resolving disputes between parties.

Dispute Resolution Practitioner

An independent and impartial individual tasked with assisting parties in a dispute.

Eligibility of arbitrators

Ability to perform as an arbitrator in a certain case. Whether an arbitrator is suitable depends on the requirements set by the applicable institutional rules as well as the parties’ agreement. The parties are free to agree on any particular additional qualification requirements. Independence and impartiality also must be taken into account.

Emergency Arbitrator

Some arbitral institutions offer to provide an emergency arbitrator in case the arbitral tribunal has not been formed yet but one of the parties seeks urgent interim or conservatory measures that cannot await the constitution of the tribunal.

Enforcement of Arbitral Awards

The act of enforcing a final arbitral award at a domestic court.

Expert Appraisal

The process in which an expert investigates the facts of a relevant dispute and provides an assessment on the issues to be resolved.

Expert Determination

A process in which an expert or specialist is chosen by the parties to resolve a dispute. The parties to the dispute submit their claims and accompanying evidence to the chosen expert, who is then tasked with resolving the dispute by issuing a non-binding or binding determination. Unlike arbitration, expert determination is usually conducted without the need of holding a hearing or complying with a set of procedural rules emanating from arbitration institutions.

Extra petita

Ground for annulment of the arbitral award in case the arbitral tribunal decides upon issues which exceed the scope of the arbitration agreement and thereby their jurisdiction.

Fast-Track Arbitration

A simplified and expeditious arbitration procedure that results in a final and binding arbitral award.

Final-offer Arbitration

A type of arbitration wherein the parties are required to submit their final offer to an arbitrator for consideration. The arbitrator then chooses one of the offers as the binding solution for both parties.

Fork-in-the-Road Clause

A clause usually found in Bilateral Investment Treaties that requires an investor to choose between different jurisdictional systems for the resolution of a dispute. In this regard, an investor would be required to make an irrevocable decision on which means of dispute resolution it wishes to pursue. More generally, the aim of a “fork-in-the-road” clause is to prevent the duplication of procedures and claims.

Freezing Injunction

An interim measure or order by a court to safeguard rights or preserve the assets of a party until the dispute is resolved.

Geneva Convention on the Execution of Foreign Arbitral Awards

A treaty which was drafted in the framework of the United Nations and provides for the recognition and enforcement of certain arbitral awards in member states. The Convention has largely been superseded by the New York Convention.

Good Faith Principle

A provision which is oftentimes included in institutional arbitration rules stipulating that parties shall at all times act fairly, honestly and efficiently.

Hearing

A meeting between the Arbitral Tribunal, the parties and their representatives during which parties, witnesses and experts may be questioned and the representatives make oral submissions.

Hot-Tubbing

A colloquial term for a procedure in which expert witnesses are questioned together and may even have a discussion among themselves or pose questions to the other experts. The procedure is also referred to as “witness conferencing”.

IBA Rules & Guidelines

The International Bar Association has drafted several guidelines and rules covering different areas of international arbitration. The IBA Rules on the Taking of Evidence in International Arbitration for example are frequently relied upon by arbitration practitioners in international arbitrations although they are not a set of institutional arbitration rules.

ICC Arbitration Rules

Arbitration rules which are being used all around the world in arbitration agreements to resolve disputes. Last entered into force in January 2021 the Rules constitute a neutral framework for cross-border disputes.

Infra Petita

Ground for annulment of the award in case the arbitral tribunal has not considered all issues submitted to arbitration.

Institutional Arbitration Rules

A set of rules provided by an Arbitral Institution shaping an arbitral proceeding which parties are free to opt for.

Inter-state arbitration 

Arbitration between two sovereign states arising out of a convention or a post-dispute submission agreement.

Interim Measures

A temporary order made by an arbitral tribunal against a party. Interim measures are often used before rendering a final arbitral award.

Intervention

The involvement of a non-signatory to the arbitration agreement as a third party in the arbitral proceedings.

Investor-state arbitration 

Arbitration between a foreign investor and a sovereign host state arising either out of an investment contract or a bilateral or multilateral investment treaty.

Joinder

The inclusion or addition of an additional party to ongoing arbitration proceedings.

Jurisdiction

In the context of arbitration, jurisdiction is referred to the arbitral tribunal’s scope of competence.

Jus Cogens

Fundamental, mandatory principles of international law.

Kompetenz-Kompetenz

The legal doctrine according to which an arbitral tribunal is empowered to assess and rule on its own jurisdiction.

LCIA Arbitration Rules

Framework for arbitrations provided by the London Court of International Arbitration.

Legal Aid

If parties cannot afford to pay the costs and fees of the litigation and if the case is not devoid of any chance of success legal aid can be granted.

Lex Arbitri

The law or system of laws governing the procedural rules applicable at the place of arbitration.

Lex Causae

The law or system of laws applicable to the substance of the dispute.

Lex Fori

The law or system of laws applicable at the seat of arbitration.

Lis Pendens

Pending legal action.

Loser-pays principle

The basic rule in Austrian Litigation is that the loser pays for the costs of the litigation (generally courts costs, lawyer costs and evidence expenses).

Mediation

A process of dispute resolution in which a mediator is tasked with facilitating and assisting the disputing parties in resolving their dispute. Mediation offers a structured environment that enables the parties to communicate their concerns and exchange information with the aim of identifying the possible steps that can be taken to resolve the dispute. The outcome of mediation is non-binding unless explicitly agreed otherwise by the parties.

Mediator

An individual trained to conduct mediations.

Mediation-Arbitration (Med-Arb)

A mediation process in which the mediator has the authority to render a final and binding decision if the parties were unable to reach an agreement.

Merger Clause

A provision within a contract which states that the terms of the underlying contract are the complete and final agreement between the parties upon completion of negotiations. A Merger Clause is also often referred to as an Entire Agreement Clause, Integration Clause or Zipper Clause.

Multiparty Arbitration Agreement

An Arbitration Agreement concluded between more than two parties.

Negotiation

A process of decision-making by two or more parties aimed at reaching an agreement.

New York Convention

The New York Convention is the most crucial tool in international arbitration to facilitate the enforceability of international arbitration agreements and awards. Countries who ratify the New York Convention agree to the recognition and enforceability of arbitral awards regardless of the jurisdiction the award stems from. Almost all states of the world have ratified the New York Convention.

Non-binding arbitration

Arbitration procedure that results in an advisory award that is non-binding and thus not enforceable. In practice, non-binding arbitrations may be used to establish the framework of ongoing settlement negotiations.

Objective Arbitrability

Refers to whether a certain subject can be submitted to arbitration or not. Criminal matters as well as subjects relating to personal affairs, e.g. divorce are examples of subjects which lack objective arbitrability.

Ombudsperson

An official appointed by Government or other authoritative body that is tasked with hearing and investigating complaints.

Online Dispute Resolution (ODR)

A form of alternative dispute resolution that makes use of technology and the internet to facilitate the resolution of disputes online.

Partial Award (Arbitration)

A decision by an arbitral tribunal on one of several specific issues rendered prior the final award.

Privacy

Only the parties to the arbitration, and no third parties or the public, may participate in the arbitral proceeding or attend a hearing. Privacy is to be distinguished from confidentiality.

Privilege

The legal principle that confers the right to a party to refuse to produce evidence.

Procedural Order

An order made by an arbitral tribunal that determines the ongoing conduct of the arbitration proceedings.

Quantum

The amount of money claimed.

Reconciliation

A restorative form of alternative dispute resolution that focuses resolving disputes while maintaining and/or restoring the relationships between the disputing parties.

Respondent

The party against whom arbitration proceedings have been initiated by the claimant.

Right to be Heard

All parties must have an (equal) opportunity to present their case and to be heard by the arbitral tribunal as well as to react to the statements made by the opposing party.

Separability Doctrine

The arbitration clause is to be considered separately from the underlying contract in which it is inserted. Hence, even if the underlying contract deems invalid, the arbitration clause is still applicable between the parties to the contract.

Setting aside an arbitral award

A national court at the seat of the arbitration denying the award effect. The grounds for setting aside are extremely limited in international arbitration (see e.g. New York Convention, UNCITRAL Model Law).

Statement of Claim (Arbitration)

The pleadings submitted by a party to initiate arbitration proceedings. The statement of claim encompasses the allegations made and relief sought by a party and thus acts as the first step in initiating arbitration proceedings.

Subjective Arbitrability

The ability of a person or legal entity to conclude a binding arbitration agreement.

Substantive Law

The law applicable to the merits of the dispute.

Third Party Funding

An entity which has no connections to the proceedings provides one of the party’s with funding for their legal costs in return for a fee which is usually determined by the outcome of the arbitration and the proceeds recovered.

Tribunal Secretary

A person appointed by the arbitral tribunal with the organization of the arbitral proceedings, especially in large cases. The Tribunal Secretary may not be delegated any decision making power.

Truncated Tribunal

Refers to arbitral tribunals in which one arbitrator refuses to take part in the arbitrators’ deliberations, unilaterally withdraws from the tribunal or refuses to sign the award.

Ultra petita

Ground for annulment of the arbitral award in case the arbitral tribunal exceeds the relief requested.

Umbrella Clause

Umbrella clauses are often to be found in Bilateral Investment Treaties. Umbrella Clauses serve the purpose of improving the protection of investor-state contracts, by obligating the investor state to comply with all obligations they have entered into with regard to investments.

UNCITRAL Arbitration Rules

The UNCITRAL Arbitration Rules were adopted by the United Nations Commission on International Trade Law (UNCITRAL) in 1976 and provide a set of rules of procedure to facilitate the conduct of ad hoc arbitrations.

UNCITRAL Model Law on International Commercial Arbitration (UNCITRAL Model Law)

The UNCITRAL model law was drafted and published by UNCITRAL in 1985 with the aim of assisting States in revising and developing their national arbitration laws. The UNCITRAL Model law was last amended in 2006.

Venire contra factum proprium

The principle which precludes a person from deviating from their previous statement or action by asserting something contrary. In common law countries this principle is also commonly referred to as ‘estoppel’.

VIAC

Short for ‘Vienna International Arbitral Centre’. The VIAC is an international arbitration institution seated in Vienna.

Vienna Rules

Institutional Rules issued by the Vienna International Arbitral Centre (VIAC) of the Austrian Federal Economic Chamber.

Waiver

The act of relinquishing a right, claim, benefit, etc.

White-collar crime

Term for financially motivated and economy-related criminal offences committed by individuals, companies or government professionals.

Witness Statement

A written statement made by a witness.

Zipper Clause

see Merger Clause