Kluwer Law International has just published a book co-edited by Professor Franco Ferrari, the Director of the Center for Transnational Litigation, Arbitration, and Commercial Law, and Professor Friedrich Rosenfeld, Global Adjunct Professor at NYU Paris and Partner at Hanefeld, Hamburg/Paris, entitled “Deference in International Commercial Arbitration”. The book offers a comprehensive and structured analysis of deference in international arbitration. In international arbitration, deference implies that one decision-maker does not make an autonomous assessment but limits its decision-making power out of respect for the decision or authority of another actor.
Drawing on abundant reference to case law from major arbitration hubs, the analysis is organized around the three relationships in which questions of deference arise: public-private relationships in which a State actor (e.g., a court) must decide whether it should pay deference to determinations made by a private actor (e.g., a tribunal or an arbitral institution); public-public relationships in which a State actor (e.g., a court at the place of recognition and enforcement) must decide whether it should pay deference to another State actor (e.g., a court at the seat); and private-private relationships in which a private actor (e.g., an arbitral tribunal) must decide whether it should pay deference to another private actor (e.g., another arbitral tribunal or an arbitral institution).
The book contains 14 chapters, including the introductory chapter, which was co-authored by Professors Ferrari and Rosenfeld, addressing the role of deference in international arbitration (by Esmé Shirlow), the forms and justifications of deference in international arbitration (by Stavros Brekoulakis & Mihaela Apostol), anticipatory deference (by George A. Bermann), deference from national courts to tribunals on issues of jurisdiction at the post-award stage (by Dennis Solomon), deference from national courts to tribunals on issues of public policy at the post-award stage (by Giuditta Cordero-Moss), deference from national courts to tribunals on issues of procedure (by Luke Nottage), judicial deference to decisions of arbitral institutions (by Rémy Gerbay & Alexander Afnán), judicial deference to decisions of arbitral institutions (by Ritika Bansal), deference and provisional measures (by Alberto Malatesta), judicial deference to arbitral tribunals under section 1782 (by Linda H. Martin & Kate Apostolova), deference from foreign enforcement courts to decisions of the courts of the seat annulling an arbitral award (by Emilio Bettoni), deference from foreign enforcement courts to decisions of the courts of the seat confirming an arbitral award (by Weixia Gu), and tribunal-to-tribunal deference in unrelated cases (by Joongi Kim).