Commercial arbitration: jurisdiction, procedure and enforcement

Drafting should distinguish matters to be stated expressly - dispute scope, governing law, seat, language, rules, appointment method and interim relief - from matters left to the applicable law or selected rules. An overly short clause may defer hard decisions until a dispute exists.

For a transaction with cross-border connections, determine whether the arbitration is international and commercial within the statutory definition, identify the seat, determine the law governing the agreement and procedure, and consider where recognition or enforcement may be needed.

Validity and scope of consent, tribunal jurisdiction, urgent relief, evidence preservation, procedure and appointment are assessed under the agreement and applicable legal framework.

In a domestic matter, confirmation of an award must be distinguished from an application to set it aside. A foreign award or international arbitration may raise separate recognition and enforcement questions under the applicable law and treaties.

• Validity and scope of consent
• Urgent relief and evidence preservation
• Appointment and conflict checks
• Procedure, disclosure, witnesses and experts
• Award, correction, confirmation, setting aside, recognition and enforcement

Acting as counsel, advising on a clause, accepting appointment as arbitrator and conducting mediation are different roles. Fit, independence and conflict checks depend on the role, agreement, law and applicable rules.

When Yehonatan Yanay acts as arbitrator, his authority derives from the arbitration agreement and governing law, and his role is to conduct an independent and fair process and decide within that authority.