International Arbitration 2025 Comparisons

Parties from the United States prefer international arbitration over any other method of dispute resolution to resolve cross-border disputes largely because of the enforceability of arbitration awards outside the United States due to treaties like the New York Convention.

Parties from outside the United States prefer to avoid litigation in US courts out of concern about the cost of US litigation, negative perceptions of US discovery, and the uncertainty inherent in jury trials in civil matters.

Parties both from inside and outside the United States often seat arbitrations within the United States (eg, New York City) because local courts support arbitration, offer a neutral legal system, and have a strong record of enforcing arbitration agreements and awards. In addition, many US cities have a long history of arbitration, with available resources and knowledgeable local counsel.

Finally, because of the importance of the United States in global commerce and finance, many awards end up being enforced in the United States, and US courts are familiar with such actions brought under the New York Convention.

The industries that have continued to experience significant international arbitration activity in recent years are:

• technology;
• construction/engineering;
• energy;
• financial services;
• real estate;
• entertainment;
• life sciences; and
• transportation and commodities.

The arbitration institutions most frequently chosen by US parties have categorised the cases they administer according to the economic sector in which particular arbitrations arise. In at least one institution, there was significant growth in transport and commodities cases, likely because of the significant price fluctuations in commodities like liquid natural gas (LNG), which have significant effects on related long-term contracts.

• International Chamber of Commerce (ICC) (2024): construction/engineering and energy (44%); transportation (6.3%); financing/insurance (5.8%); telecoms/specialised technologies (5.8%); health/pharma/cosmetics (4.8%).
• London Court of International Arbitration (LCIA) (2023): transportation and commodities (36%); banking and finance (16%); energy and resources (14%); professional services (7%); construction and infrastructure (6%); technology (6%).
• International Centre for Dispute Resolution (ICDR) (2024) in descending order: technology; construction; financial services; real estate; entertainment; life sciences; energy.

According to a recent survey, the following institutions’ rules were chosen most frequently for international disputes (in descending order):

• ICC;
• American Arbitration Association (AAA) or its affiliated International Centre for Dispute Resolution (ICDR);
• LCIA; and
• Singapore International Arbitration Centre (SIAC).

Two other institutions of note in the United States are the International Institute for Conflict Prevention and Resolution (CPR) and Judicial Arbitration and Mediation Services (JAMS).

There are no federal courts in the United States that specialise in hearing disputes related to international arbitration although certain jurisdictions hear more cases than others (eg, Washington, DC and New York City). 

State courts have concurrent jurisdiction with federal courts under the Federal Arbitration Act (FAA). Two states – New York and Florida – have specific provisions for handling international arbitration matters. In New York, state courts assign all international arbitration-related cases to a dedicated judge. Florida created an International Commercial Arbitration (ICA), which hears international commercial arbitration matters.

The FAA governs arbitration in both state and federal courts. Chapter 1 of the FAA concerns arbitration generally and primarily governs domestic arbitration. Chapter 1 applies to international arbitration in so far as it does not conflict with Chapters 2 and 3. Chapters 2 and 3 implement the New York and Panama Conventions, respectively. Chapter 4, added in 2022, prohibits employers from requiring employees or contractors to arbitrate claims of sexual harassment or sexual assault. It appears that Chapter 4 applies in international cases, but this has not been extensively tested in the courts.

The FAA is not based on the UNCITRAL Model Law, but several US states have based their state arbitration laws on the Model Law, including California, Texas and Florida.

There have not been significant changes to the FAA since 2022, when Chapter 4 was added (discussed in 2.1 Governing Law).

The FAA places arbitration agreements on “equal footing” with other contracts. Under the FAA, an arbitration agreement must be in writing and must be part of a valid contract. However, the arbitration agreement need not necessarily be signed, and it can be incorporated by reference. Arbitration agreements can be invalidated by “generally applicable contract defenses” such as fraud, duress or unconscionability.

The FAA provides that it does not apply to “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce” (9 USC Section 1). The Supreme Court has also ruled that the FAA does not allow a court to compel class arbitration when the agreement does not explicitly provide for such. Additionally, arbitration has recently faced pushback in the United States from some legislators and several states have enacted laws designed to limit mandatory arbitration – these usually affect only domestic arbitration. Finally, as discussed in 2.1 Governing Law, Chapter 4 prohibits employers from requiring employees or contractors to arbitrate claims of sexual harassment or sexual assault.

The Supreme Court has held that, under the FAA, the question as to which forum has the primary power to decide arbitrability depends upon whether the parties agreed to submit the arbitrability issue to the arbitrator. If arbitrability is delegated to an arbitrator then courts will defer to the arbitrator. However, if there is no clear delegation of authority then courts will determine the arbitrability of the dispute. In other words, courts presume that parties intend courts (not arbitrators) to decide questions of “arbitrability” unless clearly and unmistakably agreed otherwise. Questions of arbitrability include (i) whether the parties are bound by an arbitration clause and (ii) whether a concededly binding arbitration clause applies to a certain type of controversy. These comprise whether the arbitration agreement was formed, whether an arbitration agreement applies to a non-signatory, and similar threshold issues.

US courts find clear and unmistakable delegation when parties incorporate arbitration rules that delegate the question of arbitrability to the arbitrators, as do most if not all modern arbitration rules. Express carve-outs from a delegation clause have been held to impair otherwise clear and unmistakable delegations of arbitrability to arbitrators.

Recent US court rulings are mixed on the applicable choice of law to an arbitration agreement where no such law has been specified by the parties. The law applicable to the existence or validity of an arbitration agreement depends on the type of alleged defect in the agreement.

Some US courts have held that where an agreement contains a general choice-of-law clause and the arbitration agreement does not contain a choice-of-law provision but provides for a foreign-seated arbitration, the arbitration agreement creates a strong presumption that the law of the seat of the arbitration governs the arbitration agreement. Some courts have recognised that an arbitration agreement is governed by the contract law of the state whose laws otherwise apply to it. Some US courts have held that if a challenge is based on a party’s alleged lack of capacity, the applicable law is determined by the law “applicable to the party”, not the law governing the parties’ agreement or the law of the seat of the arbitration agreement. Other US courts have held that the parties’ agreement’s general choice-of-law clause will generally govern the dispute.

While the FAA is silent on the question of severability, the US Supreme Court has consistently held that an arbitration provision is severable from the remainder of the contract.

The FAA does not limit the parties’ autonomy to select arbitrators.

The FAA provides a default procedure for appointing arbitrators if no method is provided, if a method is provided for and any party fails to avail itself of the method, or if for any other reason there is a lapse or breakdown, in the naming of an arbitrator: a court appoints an arbitrator or tribunal. The exact method of selection the court chooses depends on the circumstances in a given case.

Under the FAA, courts do not generally intervene in the selection of arbitrators except as noted in 4.2 Default Procedures.

The FAA is silent on challenges to arbitrators or their removal while the arbitration is pending. Although the US Supreme Court has not decided this precise question, the prevailing understanding is that the FAA’s silence precludes courts from intervening before an award is rendered, including for arbitrator challenges.

Independence and Impartiality

In contrast to the UNCITRAL Model Law, the FAA does not expressly require arbitrator independence and impartiality. The FAA does provide that an award can be set aside, or vacated, for excess of authority, “evident partiality” or corruption of the arbitrators. In Commonwealth Coatings v Continental Coatings, the US Supreme Court vacated an award when the arbitrator failed to disclose significant business dealings with one of the parties, including earlier advice on the project at issue in the arbitration. The Court did not require proof of actual bias.

Disclosure and Non-Disclosure of Potential Conflicts

Failing to disclose a “trivial” relationship with a party does not require set aside or vacatur. Just what constitutes a “trivial” relationship is a fact-intensive inquiry into whether the non-disclosed facts create a reasonable impression of partiality. Factors include:

• the extent of the arbitrator’s personal or pecuniary interest;
• how direct or attenuated the relationship is with the dispute and/or parties; and
• the proximity in time of the contended connection with the arbitration and/or parties.

Institution Rules and Effect on Enforcement

While institutional rules and guidelines require an arbitrator to be and remain independent and impartial and make relevant disclosures, and have a mechanism for challenging an arbitrator’s appointment or continued service, a violation of an institution’s rules is not dispositive of whether there was a violation of the FAA.

While the FAA is silent on whether a tribunal may rule on a challenge to its own jurisdiction, US courts recognise the principle of competence-competence – a tribunal’s right to decide its own jurisdiction – so long as the parties’ agreement clearly and unmistakably grant the tribunal this power.

However, a challenge to arbitrators’ jurisdiction can also be brought in court either before arbitration (when the court may enforce the arbitration agreement by dismissing or staying the competing court case) or at the enforcement stage (when a losing party challenges an award on the basis that the arbitrators lacked jurisdiction).

See 3.2 Arbitrability for detailed discussion of arbitrability. Once arbitrability is established, all doubts concerning the scope of arbitrable issues are resolved in favour of arbitration. For example, courts presume arbitrators decide disputes over procedural gateway matters like waiver, delay and similar defences. Similarly, courts presume arbitrators decide whether conditions precedent to arbitration have been fulfilled, like time limits, notice, laches and estoppel.

Conversely, US courts review negative decisions on jurisdiction using the same analytical framework described above. There is no difference in principle from arbitrators’ decisions that they have jurisdiction over the dispute.

Given how narrow the issue of arbitrability is, in practical terms, US courts’ review of arbitral rulings on jurisdiction tends to be narrow.

Even before an arbitration has been filed, parties can challenge the putative jurisdiction of an arbitral tribunal by filing in a US court instead of participating in the arbitration.

After an arbitration has been filed, if a party participates in an arbitration on the merits without expressly objecting to arbitral jurisdiction, the party risks waiving its right to challenge arbitral jurisdiction. However, if that party files an objection to the tribunal’s jurisdiction and then participates, the jurisdictional objection is preserved for later court review.

The standard of judicial review for questions of jurisdiction and admissibility depends on the parties’ agreement about delegation and whether the threshold issue of arbitrability is at issue (discussed in 3.2 Arbitrability). Generally, such determinations are made de novo.

As noted in 5.2 Circumstances for Court Intervention, once arbitrability is determined in favour of arbitrations, courts will review arbitrators’ decisions on admissibility and jurisdiction deferentially.

Parties that commence court proceedings in breach of an arbitration agreement will likely be met by the opposing party with a motion to stay the court litigation and compel arbitration. Courts will determine the threshold question of arbitrability, and, if there is a valid arbitration agreement, will not hesitate to stay the litigation and compel arbitration.

The FAA does not allow an immediate appeal from a court decision that compels arbitration requiring the arbitration to proceed and conclude before appeal, or for a party to request permission to appeal. However, the FAA allows immediate appeal from a decision refusing to compel arbitration and stay litigation. In this case, a party can get the ruling reviewed before having to proceed with litigation.

The FAA does not address whether third parties or non-signatories are bound by arbitration agreements. Generally, only a party to an agreement is bound by or may enforce the agreement.

However, US courts have enforced arbitration agreements against non-signatories (or allowed non-signatories to enforce arbitration agreements) in the following:

• waiver and estoppel;
• piercing the corporate veil;
• assumption;
• alter ego;
• incorporation by reference;
• third-party beneficiary theories;
• assignment;
• agency principles;
• closely affiliated persons or entities;
• intertwined claims; and
• trade custom and usage.

The FAA does not contain provisions regarding interim measures. However, most institutional rules, which parties may incorporate into their agreements, empower a tribunal to issue interim measures. These include:

• injunctions for the preservation of evidence or assets;
• security for costs; and
• temporary restraining orders.

These rules, however, require the arbitrators to provide both parties an opportunity to be heard and do not usually permit the type of ex parte restraining orders often granted by US courts.

US courts have treated interim measures orders issued by the tribunals as enforceable final awards under the FAA, subject to confirmation and enforcement, where the interim relief is necessary to prevent the final award from becoming meaningless.

As discussed in 6.1 Types of Relief, US courts will confirm and enforce interim relief orders issued by an arbitral tribunal in limited circumstances.

Alternatively, a party may seek interim relief from a court prior to constitution of the tribunal without waiving its right to insist that its claims be arbitrated. US courts are empowered to issue preliminary injunctions and attachments of property as well as ex parte temporary restraining orders.

While the FAA does not address this issue, emergency relief from an arbitrator is provided for by most institutions that conduct arbitrations in the United States including the AAA, ICC, CPR and JAMS. Emergency decisions are viewed as interlocutory as they can be later altered upon formation of the tribunal.

The FAA is silent on this issue, but federal district courts have the equitable power to require plaintiffs to post security for costs. This is especially common when a non-resident party is involved but may be limited to urgent situations where arbitrators cannot act timely. When deciding to grant security for costs, courts strike a delicate balance between:

• the degree of probability of success on the merits and the background purpose of the suit;
• the reasonable extent of the security to be posed, viewed from the defendant’s perspective; and
• the reasonable extent of the security to be posed, viewed from the non-domiciliary plaintiff’s perspective.

Parties are free to agree on the rules governing the procedure of arbitration as the FAA does not contain any mandatory rules governing arbitral proceedings. As described in 4.2 Default Procedures, the FAA provides a procedure for appointment of a tribunal in certain circumstances.

There are no particular procedural steps required by the FAA for arbitral proceedings conducted in the United States.

The FAA provides limited powers to arbitrators. Section 7 of the FAA empowers arbitrators to issue subpoenas for the attendance of witnesses and/or the production of documents at a hearing. Courts are split, however, on whether this power is limited to the context of an evidentiary hearing. Generally, arbitrators cannot compel attendance of a non-party at a pre-hearing deposition.

As discussed above, the FAA is also silent on the duties of arbitrators, including as to the independence and impartiality of arbitrators, except that evidence of partiality or corruption can be grounds for vacating an award.

The practice of law in the United States is regulated largely by individual states.

Legal counsel and arbitrators are subject to the ethical codes and professional standards set by the state in which the arbitration is seated. US practitioners are also subject to the ethical codes and professional standards of the jurisdiction in which they are licensed. All counsel and arbitrators should therefore familiarise themselves with the rules of the state in which the arbitration is seated.

The jurisdictions where arbitrations are most typically seated in the US do not regard appearances by out-of-state or foreign lawyers in arbitrations as constituting the “unauthorized practice of law” and therefore do not require that they be admitted locally. This is especially true for international arbitrations. Practitioners will be subject to the rules of conduct of the state bar where the arbitration takes place.

However, in certain states, counsel must be licensed to practise in that state, and, if not licensed, may only participate in arbitration if the proceedings arise out of the attorneys’ home state practice. In others, counsel must file a verified statement with the state bar association or practise in conjunction with a licensed attorney.

The FAA does not provide any evidentiary rules. Arbitrators are accorded great deference in their application of evidentiary rules. To the extent that parties agree, arbitrators may refer to the Federal Rules of Evidence or the IBA Rules on the Taking of Evidence in International Arbitration. In addition, many institutional rules include guidelines on evidentiary matters.

Under the FAA, arbitrators have the power to summon witnesses to appear, testify and produce documents at an arbitration hearing. The US district court for the district in which the arbitration is seated is typically required to enforce such summons, but such enforcement is not guaranteed. In the event of non-compliance, the statute empowers the district court in the district in which the arbitrator sits to compel attendance before the arbitrator at a hearing. In addition, if a third-party witness is outside the range of a court at the arbitral seat, parties should consider a court at the location of the witness. Outside the context of a hearing, the FAA does not empower the arbitrators to subpoena documents from third parties.

See 8.1 Collection and Submission of Evidence.

See 8.1 Collection and Submission of Evidence.

The FAA does not provide specific rules governing confidentiality. Nor do cases generally find an implicit commitment to confidentiality by merely agreeing to resolve disputes by arbitration. Most institutions’ rules provide default confidentiality rules, which apply when the parties do not have a specific agreement.

US courts will generally uphold confidentiality agreements between parties made before or during an arbitration.

Unless expressly protected by the parties’ agreement or chosen arbitration rules or a tribunal order, information in US court proceedings and papers filed in connection with them are presumptively open to the public. In short, information in arbitral proceedings is likely to be disclosed in judicial proceedings to enforce an arbitration agreement or arbitration award.

In order for an arbitral award to be enforced by US courts, it must be “confirmed” (ie, recognised) by a court with jurisdiction. The legal requirements for confirmation/recognition and enforcement differ depending on the nature of the award and the jurisdiction in which recognition is sought. There is no requirement that the award be reasoned, unless agreed by the parties.

The FAA does not require a particular form for an arbitral award. Under the New York Convention, the award must be claimed within three years and the arbitration agreement must have been in writing. A motion to vacate the award must be filed and served within three months of the award being filed or delivered.

The FAA does not limit available remedies. However, certain states may do so and, if state law governs rather than federal, those restrictions may apply. For example, in New York state arbitrations, arbitrators generally may not award punitive damages.

In certain circumstances, courts have refused to enforce remedies in international arbitral awards that violate US public policy. For example, in Hardy Expl. & Prod. (India), Inc. v Gov’t of India, Ministry of Petroleum & Nat. Gas, a district court refused to recognise an award that ordered specific performance in India, finding that doing so would violate US public policy recognising a state’s sovereignty and the right to control its lands and natural resources.

The FAA is silent on costs, and courts diverge on the question of how the costs of arbitration proceedings should be estimated and allocated. Costs are generally handled as a matter of contractual agreement between the parties or according to the institutional rules that govern a proceeding. Generally, the US follows the American Rule, ie, each party bears its own costs.

The FAA is silent on interest. However, US courts have generally held that, unless parties have specified otherwise in their agreement, arbitrators have the authority to award interest and to determine the amount of interest and the date from which the interest should be calculated.

Moreover, in the US, unless specified otherwise in the parties’ arbitration agreement, once an award is confirmed, post-award interest will be governed by the federal post-judgment interest statute, 28 USC Section 1961. This is because the US has adopted the doctrine of merger, whereby once a claim (or award) is reduced to a judgment, the original claim is extinguished and a new claim, called a judgment debt, arises.

The FAA does not entitle parties to appeal arbitration awards. Under the FAA, there are very limited circumstances in which a party may apply to have an award vacated, modified and/or corrected. A court may vacate an award:

• where the award was procured by corruption, fraud or undue means;
• where there was arbitrator evident partiality or corruption;
• where the arbitrators were guilty of misconduct in refusing to postpone the hearing or in refusing to hear evidence pertinent and material to the controversy, or of any other misbehaviour by which the rights of any party have been prejudiced; or
• where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.

These statutory grounds for vacatur/set aside cannot be varied by party agreement. As a matter of common law, vacatur is available on the non-statutory ground of “manifest disregard of the law”. An applicant for vacatur must establish both that (i) the arbitrators knew of a governing legal principle yet refused to apply it or ignored it altogether, and (ii) the law ignored by the arbitrators was well defined, explicit and clearly applicable to the case.

A court may court may modify or correct an award:

• where there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the award;
• where the arbitrators have awarded upon a matter not submitted to them, unless it is a matter not affecting the merits of the decision upon the matter submitted; and
• where the award is imperfect in matter of form not affecting the merits of the controversy.

Such an application may be brought either in the district where the award was made or in any district proper under the general venue statute.

If a court vacates an arbitration award, and the arbitration agreement is still valid, the court may direct rehearing by the arbitrators.

Parties cannot expand the scope of judicial review or challenge under the FAA.

Under the FAA, courts in the United States do not review the merits of a case. This applies to international arbitrations seated inside the United States and to foreign awards for which enforcement is sought under the New York or Panama Conventions, or the ICSID Convention. Review is only for the reasons stated in 11.1 Grounds for Appeal.

The US is a party to the 1958 New York Convention with two reservations. First, the reciprocity reservation means that the US only applies the Convention to recognise and enforce awards made in the territory of another state party to the Convention. Second, the commercial reservation means that the US only applies the Convention to “differences arising out of legal relationships” that are considered commercial under US domestic law.

The US is also a party to the Inter-American Convention on Commercial Arbitration and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. The Inter-American Convention on Commercial Arbitration contains a reciprocity reservation that mirrors the US reservation in the New York Convention.

Additionally, the US is party to multilateral and bilateral treaties that contain arbitration provisions.

In order for an arbitral award to be enforced by US courts of the United States, it must be “confirmed” (ie, recognised) by a court with jurisdiction.

Domestic Awards

The FAA provides a summary procedure where – if the parties in their arbitration agreement have agreed that a judgment of the court shall be entered upon the award – an award “shall” be confirmed if it is requested within one year of issuance unless the award is vacated, modified or corrected.

International Awards

Chapter 2 of the FAA incorporates the provisions of the New York Convention, and provides for similar summary proceedings:

“Within three years after an arbitral award falling under the [New York] Convention is made, any party to the arbitration may apply to any court having jurisdiction under this chapter for an order confirming the award as against any other party to the arbitration. The court shall confirm the award unless it finds one of the grounds for refusal or deferral of recognition or enforcement of the award specified in the said Convention.”

Execution of Award

Once a party has confirmed an arbitral award, they have in hand an enforceable US court judgment, against which they can attempt to execute against the judgment debtor’s assets. Such execution procedures are governed by applicable rules of both federal and state court.

US courts are likely to enforce arbitration awards. Under the FAA, a court can refuse enforcement if:

• the award was procured by corruption, fraud or undue means;
• there was evident partiality or corruption by the arbitrators;
• the arbitrators were guilty of misconduct in refusing to postpone the hearing for sufficient cause, in refusing to hear pertinent and material evidence, or any other misbehaviour which prejudiced any party’s rights; or
• the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final and definite award was not made.

These are the exclusive grounds for setting aside an award under the FAA. Thus, barring these statutory exceptions, arbitration awards will generally be enforced.

Per the New York Convention, courts may also refuse to recognise and enforce an award when it contravenes domestic public policy. However, in US courts, “public policy” is narrowly interpreted. Challenging enforcement based on public policy would likely require that unambiguous, well-defined and dominant public policy is being violated.

However, the US Supreme Court has not clarified whether grounds for refusing enforcement based on public policy rather than the FAA’s enumerated categories is permissible. There is currently a circuit split.

The FAA is silent on whether class action arbitration is allowed. The US Supreme Court has held that a party may not be compelled to submit to class arbitration absent an agreement to do so. An agreement to submit to class action arbitration must be express; courts may not infer consent to class arbitration through state-law interpretation of an ambiguous contract.

In recent years, largely in domestic US employment and business-to-consumer contexts, “mass arbitrations” have emerged. Dozens, and sometimes thousands, of individuals bound by class-action waivers in arbitration agreements assert each of their claims, individually, in arbitration. Often the arbitration agreement, the arbitration rules or the applicable law requires the business to pay the lion’s share of arbitration costs. This has resulted in very significant upfront fees for businesses facing these “mass arbitrations”. Some US-based arbitration organisations have refined their fee schedules to mitigate this impact. The area of the law is developing quickly as a matter of US domestic arbitration law.

See 7.4 Legal Representatives.

Additionally, some institutions provide guidance on the ethical requirements for arbitrators. See, for example, the American Bar Association Code of Ethics for Arbitrators in Commercial Disputes, and the JAMS Arbitrators Ethics Guidelines.

The FAA does not provide any rules or restrictions on third-party funders. However, the US Congress is currently considering legislation that would require disclosure of third-party funders to courts in civil actions, including in actions to enforce arbitral awards or arbitration agreements. This legislation would not apply to arbitrations.

The FAA does not provide for joinder of parties or consolidation of multiple arbitrations. The US Supreme Court holds that parties may specify with whom they choose to arbitrate their disputes, which entails that multi-party and multi-contract arbitration agreements are generally enforceable. Whether joinder or consolidation is permitted is left to arbitral tribunals to decide unless the parties specify otherwise in their agreement.

See 5.6 Jurisdiction Over Third Parties.