Determining the language in international arbitration

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Published in Spain Arbitration Review

Arbitration can be domestic or international. The term “international” is used to differentiate arbitrations that exceed national scope from those that are entirely domestic.

It is quite common for international arbitration to involve parties, arbitrators, lawyers and third parties –such as witnesses and experts– of different nationalities, who usually speak different languages or do not have the same level of proficiency in the same language. For that reason, one of the most important decisions when negotiating an arbitration clause or the features of the specific arbitration proceedings, in the absence of a prior agreement, is determining which language or languages will be used.

The language –or languages– of the arbitration is the language in which all matters connected with the arbitral proceedings will be conducted, including the parties’ written and oral submissions, evidence –whether written or oral–, the arbitrators’ procedural orders and the award itself.

The language of the arbitration has a decisive impact on at least four different aspects of how the proceedings develop, namely (i) party equality, this is, the right for the parties to present their case in a neutral language2, (ii) efficiency and the cost of the arbitral proceedings, (iii) the composition of the arbitral tribunal and (iv) the interaction with national courts in the event of annulment or enforcement of the award.

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