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1
Henry, Peter, Ross Hamish LLB, and McKenzie Graham, eds. The 33rd America's Cup judicial and arbitral decisions. Alphen aan den Rijn, The Netherlands: Kluwer Law International, 2012.
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2
Simmons, C. Gordon. Arbitral stare decisis: A study of arbitral restraints upon management rights. Kingston, Ont: Industrial Relations Centre, Queen's University, 1986.
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3
Hernández, Dante Figueroa. Impugnabilidad en Chile de las decisiones arbitrales internacionales. Santiago, Chile: Editorial Jurídica la Ley, 2001.
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4
Davis, Angela J. Arbitrary justice: The power of the American prosecutor. New York: Oxford University Press, 2007.
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5
Sherk, Murray Wayne. Linear and arbitrary predicates in decision trees for element distinctness. Toronto: University of Toronto, Dept. of Computer Science, 1986.
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7
Michael, Moser, and Bao Chiann. 11 Awards, Decisions, and Orders of the Arbitral Tribunal (Articles 32–40). Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198712251.003.0011.
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This chapter discusses section V of the HKIAC Rules. It provides the framework for making awards, decisions, and orders by the arbitral tribunal in HKIAC arbitrations. It also addresses the costs of arbitration and deposits for such costs. The process of rendering an award under the HKIAC Rules involves the following stages: the closure of hearings, deliberation, the reaching of a decision, the assessment of costs, the rendering of the award, and the transmission of the award. The award will typically comprise the following elements: the identification of the parties, the specification of the date of the award and the seat of the arbitration, the procedural history, the summary of the factual background and the issues in dispute, the substantive analysis for the decision, and the specification of any orders to be carried out by the parties.
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Gabrielle, Kaufmann-Kohler, and Rigozzi Antonio. 5 The Jurisdiction of the Arbitral Tribunal. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780199679751.003.0005.
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Building upon the discussion on the validity and effects of arbitration agreements in chapter 3, this chapter examines the rules governing the jurisdiction of arbitral tribunals. It addresses a number of questions arising from the arbitral tribunal’s and the courts’ review of arbitral jurisdiction, from the implications of the principle of competence-competence to jurisdictional objections and the effects of parallel proceedings. Special attention is given to topics such as the so-called negative effect of competence-competence, the arbitration-specific lis pendens rule established in Article 186(1) bis PILA and the res judicata effect of prior arbitral or judicial decisions on jurisdiction. The chapter’s final section discusses anti-suit and anti-arbitration injunctions.
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Neumayer, Susan. Reconciling the collective agreement with human rights obligations: An analysis of arbitral decisions on seniority rights and the duty to accommodate disabled employees. 2003.
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10
Ian, Gaunt. Part III Where to Arbitrate? Distinctive Features of Maritime Arbitral Seats, 9 Maritime Arbitration in London: Publication of Awards, Appeals, and the Development of English Commercial Law. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198757948.003.0009.
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This chapter examines what makes London so popular as a maritime arbitration centre. Chief among the reasons is the availability of a pool of arbitrators with a breadth of professional knowledge and experience, including not just lawyers but commercial men and women. It also discusses the perceived effect of the use of arbitration on the development of English law. On the one hand, the number of appeals going to the courts is such as to ensure that new precedents are produced in order to lend vibrancy to the law. On the other hand, some first instance decisions have shown a tendency on the part of judges to decide cases without sufficient sensitivity to commercial practice, leading to precedents that are hard for arbitrators to apply. The chapter also considers the major challenges faced by the London Maritime Arbitrators Association in maintaining London as the foremost centre for the resolution of shipping disputes.
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Silja, Schaffstein. Part II The Doctrine of Res Judicata in International Commercial Arbitration, 4 Res Judicata in International Commercial Arbitration—A Problem. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198715610.003.0005.
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This chapter addresses problems concerning the doctrine of res judicata in international commercial arbitration. It also asks the following questions: What are the possible consequences of the occurrence of res judicata issues in international commercial arbitration? Expressed differently, what interests are at stake? Duplicative proceedings of res judicata require vast resources. The parties are required to invest considerable amount of time, money, and efforts in proceedings which they already went through, without having any good reason to suppose that the second proceedings will lead to a more accurate decision than the first one. These situations only gave an additional burden on the party who prevailed in the first proceedings. Also, these proceedings create risk of inconsistent decisions. Coexistence of inconsistent decisions could seriously undermine the very existence of the arbitral process.
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Nikolaus, Pitkowitz. 20 Vienna. Oxford University Press, 2014. http://dx.doi.org/10.1093/law/9780199655717.003.0021.
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This chapter evaluates the merits of Vienna as a venue for international arbitration proceedings. It discusses the history and development of arbitration in Austria; the processes and rules involved as well as the role of courts in the conduct of arbitration proceedings; and rules for arbitral awards. It concludes that Austria is a United Nations Commission on International Trade Law (UNCITRAL) Model Law jurisdiction with a long and stable history of supporting arbitration. A wealth of decisions by the Austrian Supreme Court and a wealth of legal commentaries offer clear guidelines to the arbitration practitioner and only very few surprises. The Vienna Rules are one of the most streamlined of modern institutional arbitration rules that provide substantial flexibility for arbitral proceedings.
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Jeffery, Commission, and Moloo Rahim. 6 Non-Disputing Party Participation and Transparency. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198729037.003.0006.
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This chapter examines the issue of transparency in treaty-based investment arbitration by focusing on the participation of third parties or non-disputing parties in disputes. More specifically, it considers the procedural issues that transparency mechanisms in bilateral-investment treaties and free-trade agreements, as well as in recently revised arbitral rules, create for arbitral tribunals and those appearing before them. After discussing non-disputing party practice in investment arbitrations, the chapter explains the practice of non-disputing state parties in UNCITRAL and International Centre for Settlement of Investment Disputes (ICSID) arbitrations. It also analyses transparency mechanisms beyond the participation of non-disputing parties in investment arbitrations from the written procedure through to the oral procedure, culminating in a tribunal's decisions and award.
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Jeffery, Commission, and Moloo Rahim. 10 Statements or Submissions on Costs. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198729037.003.0010.
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This chapter considers the duration and costs of investment arbitrations as well as the procedural mechanics of cost submissions or statements of costs. It first examines the timing, format, and content of cost submissions and statements of costs before discussing the relevant arbitral rules that govern such submissions in International Centre for Settlement of Investment Disputes (ICSID) Convention and ICSID Additional-Facility arbitration proceedings, along with the average amount of such costs. It then explains the UNCITRAL Arbitration Rules on costs submissions, taking into account the average amount of those costs, and the duration of arbitration proceedings. It also analyses how arbitral tribunals have allocated costs in ICSID and UNCITRAL proceedings and highlights the factors deemed relevant by tribunals in those decisions.
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Fernando Eduardo, Serec, and Neto Antonio Marzagão Barbuto. 14 São Paulo. Oxford University Press, 2014. http://dx.doi.org/10.1093/law/9780199655717.003.0015.
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This chapter evaluates the merits of Sao Paulo as a venue for international arbitration proceedings. It discusses the history and development of arbitration in Brazil; the processes and rules involved as well as the role of courts in the conduct of arbitration proceedings; and rules for arbitral awards. IT concludes that Sao Paulo's status as Brazil's leading center for business and financial transactions makes it the perfect breeding ground for arbitration. From the creation of the first arbitration center in 1979, to the consolidation of an ‘arbitration culture’ by the relentless work of the local arbitration community, Sao Paulo remains Brazil's preferred venue for arbitral proceedings. The decisions by the local courts represent the most compelling evidence that Sao Paulo is comparable to other major international arbitration venues.
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Annabelle, Möckesch. Part 2 Determining the Applicable Attorney–Client Privilege Standard, 9 Applicable Privilege Standard in Investor–State Arbitration and Comparison with International Commercial Arbitration. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198795865.003.0009.
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In investor–state arbitrations, which are concerned with the resolution of disputes between foreign investors and states parties over the state’s exercise of its public authority in relation to legislative, administrative, or judicial measures, the parties often invoke attorney–client privilege as a defence to document production requests. This chapter therefore examines how arbitral tribunals have determined the applicable attorney–client privilege standard in investor–state arbitration. It reports on several procedural orders and decisions issued by arbitral tribunals constituted under the North American Free Trade Agreement and other bilateral or multilateral treaties. As in these proceedings attorney–client privilege claims often arise together with Cabinet privilege claims, the tribunals’ findings on the applicable Cabinet privilege standard are presented as well. Lastly, the chapter explores whether the solution proposed for international commercial arbitration can also be adopted in investor–state arbitration.
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Antonio R, Parra. 8 Aspects of the Early Cases. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198767466.003.0008.
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This chapter focuses on key aspects of the cases brought to ICSID in its first two decades. Section I examines the ways in which successive Secretaries-General handled the registration of requests to institute proceedings and, in particular, their “screening” of such requests. Patterns in the constitution of the conciliation commissions and arbitral tribunals are traced in Section II, as are the first experiences of the Centre with the resignation and challenge of arbitrators. Section III discusses the distinctly pragmatic approaches of arbitral tribunals in this period to jurisdictional issues, especially the requirement of consent. There was controversy in the early 1980s as to the availability, in the context of an ICSID case, of court-ordered provisional measures. The controversy is reviewed in Section IV, which also looks at the first instances of arbitral provisional measures under Article 47 of the ICSID Convention. Section V examines the underlying interpretations of Article 42(1) of the Convention. Three ad hoc committee decisions rendered under Article 52 of the Convention are the subject of Section VI. Most of the few court proceedings for the enforcement of ICSID awards took place in these early years; the proceedings are reviewed in the concluding Section VII.
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Gabrielle, Kaufmann-Kohler, and Rigozzi Antonio. 7 The Law Applicable to the Merits and the Award. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780199679751.003.0007.
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Before describing the main features of an award, this chapter discusses the determination of the law governing the merits of the dispute or lex causae. It considers the role of party autonomy in this respect and examines the scope and content of the potentially applicable substantive laws that may be chosen by the parties or selected by arbitral tribunals, from national laws to transnational rules of law (the so-called lex mercatoria) over trade usages and ex aequo et bono principles. It also discusses the relevance and impact of international public policy and overriding or internationally mandatory rules. Turning to the award, the last part of the chapter sets out a typology of arbitral decisions, addresses the required form and content of awards and discusses the deliberation process as well as issues such as institutional scrutiny, dissenting opinions, and the notification, publication, and effects of the award.
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Jeffery, Commission, and Moloo Rahim. 11 Post-Award Applications. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198729037.003.0011.
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This chapter focuses on International Centre for Settlement of Investment Disputes (ICSID) and UNCITRAL tribunal practice on post-award applications. It begins with a discussion of certain post-award remedies under the ICSID Convention and ICSID Additional-Facility arbitral rules, including requests for supplementary decision, rectification/correction, interpretation and revision. It then considers annulment under the ICSID Convention, with emphasis on the conduct and procedure for annulment proceedings, the number of annulment applications and rates of success, and the constitution and composition of ad-hoc committees. It also examines the practice of stays of enforcement in annulment proceedings, and in particular the relatively long line of ICSID decisions rendered by ad-hoc committees on such applications. Finally, it outlines the post-award remedies available to parties under the UNCITRAL Arbitration Rules.
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Henry G, Burnett, and Bret Louis-Alexis. Arbitration of International Mining Disputes. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198757641.001.0001.
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International mining disputes represent a significant and growing area of disputes over natural resources, yet the unique risks inherent in the mining industry set them apart, both in the nature of the disputes and the approach taken to resolve them. International arbitration has emerged as the mechanism of choice for the resolution of such disputes. This has given rise to a wealth of arbitral decisions from which certain principles specific to the mining sector are developing. This book brings together thorough analysis of arbitral decisions and insightful commentary on both dispute resolution and the business of mining, in order to provide a comprehensive guide to arbitration in the mining sector. Part I introduces the different parties involved in international mining projects; Part II explains the main risks and challenges involved in mining projects and how they result in different types of disputes; Part III provides practical advice for parties and counsel involved in international mining disputes, including in-depth analysis of the confidentiality issues that so often arise in connection with international mining disputes and the conditions and strategies for the settlement of these disputes; and Part IV examines the substantive principles applicable to international commercial and investor-State mining disputes.
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Titi, Catharine. The Function of Equity in International Law. Oxford University Press, 2021. http://dx.doi.org/10.1093/oso/9780198868002.001.0001.
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A principle with a long pedigree, equity has been present in legal thought and in municipal legal systems since antiquity. Introduced in international legal decisions through claims commissions and arbitral tribunals, equity became progressively part and parcel of the international law mainstream. This book provides a systematic and comprehensive study of the legal concept of equity as it operates in contemporary international law, setting it on a new basis and dealing with some common misconceptions about it. In contrast with earlier studies on the topic, the book is informed by a body of judicial and arbitral case law that has never been so large and varied and it draws extensively on the prolific case law of investment tribunals, gaining insights from a valuable source that is typically ignored in public international law scholarship. From international cultural heritage law to the law on climate change, from maritime boundary delimitations to decisions on security for costs in investment arbitration, the relevance of equity is more far-reaching than has previously been conceded. As the importance of international law increases, continuously covering new domains, the value of equity increases with it. It is this new function of equity in the international law of the 21st century that this book explores.
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Jeffery, Commission, and Moloo Rahim. 5 The Splitting of Issues for Separate Determination (Bifurcation/Trifurcation). Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198729037.003.0005.
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This chapter focuses on one of the most important procedural decisions a tribunal can make in an investment arbitration: the bifurcation or trifurcation of issues into separate phases. The rationale behind bifurcation/trifurcation is straightforward: bifurcation may result in the narrowing or even dismissal of claims, but can significantly increase the costs and duration of an arbitration. This has not gone unnoticed by users of the International Centre for Settlement of Investment Disputes (ICSID) and other systems of dispute settlement. After discussing the relevant arbitration rules that govern the decisions of arbitral tribunals on bifurcation, the chapter considers the various procedural aspects of bifurcation requests. It also examines the number of bifurcation requests actually filed in ICSID and UNCITRAL arbitrations, how tribunals decided those requests, and the factors applied by tribunals in those decisions.
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Kendra, Magraw. Notable Developments in International Investment Arbitration Case Law. Oxford University Press, 2017. http://dx.doi.org/10.1093/law-iic/9780198809722.016.0003.
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The years 2015 and 2016 saw dynamic and significant developments in international investment law and arbitration. This chapter discusses some notable decisions and developments in the case law that occurred during this period. It focuses on decisions that: are novel; address topical issues; may impact subsequent case law as a result of, amongst others, the interpretation of multilateral treaties or the development of legal doctrines; were particularly high-profile or garnered significant public attention; and/or may shape the development of the investor–state arbitration regime. The chapter is divided into six parts: security for costs; disclosure of third-party funding; strategic investment structuring to benefit from investment treaty protection; the first decisions issued in the Energy Charter Treaty (ECT) disputes against Spain; host states' right to regulate; and the enforcement and set-aside of arbitral awards.
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Karen L, Remmer. The Outcomes of Investment Treaty Arbitration. Oxford University Press, 2017. http://dx.doi.org/10.1093/law-iic/9780198809722.016.0004.
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This chapter explores variations in dispute outcomes in investment treaty arbitration. Building on the literature on political institutions, the study places the theoretical importance of actor information about the rules of the game and the resources of the participants at the centre of analysis. Such information shapes the strategy of the players and their relative ability to compete successfully, establishing the basis for hypotheses about variations in dispute outcomes. Drawing on the universe of known disputes, the analysis relies on statistical models and data capable of addressing concurrently the full range of potential dispute outcomes rather than particular categories of wins and losses. States do not just win or lose treaty-based investment disputes; disputes can also be concluded by decisions to discontinue arbitral proceedings and by settlements negotiated between states and investors prior to an arbitral award. Consistent with theoretical expectation, the findings indicate that dispute outcomes vary in response to the evolution of the system of dispute settlement over time, sector of investment, and access to international legal expertise, thereby underlining the pivotal role of information flows in investment dispute settlement.
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Ahmed, El Far. Abuse of Rights in International Arbitration. Oxford University Press, 2020. http://dx.doi.org/10.1093/law/9780198850380.001.0001.
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In recent years, international arbitration has become plagued by different forms of substantive and procedural abuse. For example, we have witnessed a rise in cases where parties restructure their investments in an abusive manner by altering one of its features purely to gain access to ICSID arbitration. Similarly, the increasingly common practice of initiating parallel arbitral proceedings in order to maximise a party’s chances of success, and the possibility of inconsistent decisions pose a risk to standards of fairness. Abusive practices designed by parties to prejudice their opponents may undermine the fair resolution of disputes and frustrate the administration of arbitral justice. There are pre-existing tools and legal rules that can be utilised to prevent abuse. However, these tools are inherently rigid in their application and fail to remedy all forms of abuse. Abuse of Rights in International Arbitration introduces the principle of abuse of rights and considers its application as a general principle of law to prevent different forms of substantive and procedural abuse in international arbitration. The virtue of a single theory with a wide scope and an overarching premise is that it is a principle, which involves equity considerations, enjoys the flexibility of general principles of law, and can address different abusive behaviours. The author carefully examines the legal basis and core elements of abuse of rights and analyses the relevant case law to address how the principle may affect administration of arbitral justice. Arguing for the application of abuse of rights as a general principle of law, the author expertly examines how it could apply in both international commercial and investment arbitration to tackle procedural misconduct and different abusive practices.
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Jeswald W, Salacuse. The Law of Investment Treaties. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198703976.001.0001.
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The rapid growth in investment treaties has led to a burgeoning number of international arbitration decisions that have applied and interpreted treaty provisions in disputes between investors and states concerning their respective rights. This flurry of treaties and arbitral decisions has seen the creation of a new branch of international law - the law of investment claims. In this revised second edition, Jeswald Salacuse examines the law of international investment treaties, specifically in relation to its origins, structure, content, and effect, as well as their impact on international investors and investments, and the governments that are parties to them. Specific topics include conditions for the entry of foreign investment and general standards of treatment of foreign investments; monetary transfers; operational conditions; protection against expropriation; dispossession and compensation for losses; dispute settlement, including negotiation, arbitration, and conciliation; and judicial proceedings.
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Reinmar, Wolff. 6 The Arbitral Award. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780199676811.003.0006.
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This concluding chapter examines the arbitral award given at the outcome of the arbitration proceedings. It describes the different ways German arbitration law resolves the dispute — by decision of the arbitral tribunal and by settlement of the parties — and the rules which the arbitral tribunal applies when deciding on the merits and costs. Traditionally, arbitration is characterized by, on the one hand, largely flexible arbitral proceedings and, on the other hand, an outcome, the award that not only is tantamount to a state court judgment but also is equipped with restricted remedies and facilitated means of enforcement both domestically and internationally. In conformity with German court tradition, arbitral tribunals in Germany often encourage the parties to consider making a settlement. To facilitate enforcement of the terms of any such settlement, it may be recorded by the arbitral tribunal in the form of an award on agreed terms.
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Grant, Hanessian. Part V Emergency Arbitrators and Interim Relief, 15 Legal Standards Applicable to Deciding Applications for Interim Relief. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198783206.003.0016.
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Parties in a dispute sometimes need to obtain relief prior to the final disposition of the case. Such relief-in international arbitration variously termed ‘interim measures of protection’, ‘conservatory measures’, or ‘provisional’, ‘preliminary’, or ‘temporary’ relief-may be necessary to preserve the status quo, to facilitate conduct of arbitral proceedings, or to ensure enforcement of a future award. In recent years, interim relief has received more attention and it has become increasingly possible to identify international standards relevant to applications for interim relief. This chapter considers these emerging standards, with particular emphasis on contributions made by the decisions of investor-state tribunals and emergency arbitrators.
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William W, Park. Part I International Arbitration Law, Arbitral Jurisdiction, and Arbitral Institutions, 1 Explaining Arbitration Law. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198783206.003.0002.
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This chapter considers the challenges in explaining arbitration law. Unlike most fields of law that provide guidance on how courts decide cases, arbitration law tells judges when not to decide disputes, in deference to private decision-makers selected by the litigants. However, if one side regrets a decision to arbitrate, or the parties diverge about what the arbitration clause covers, courts may be asked to assist in implementing the arbitration agreement or resulting award. At such moments, arbitration law normally includes two limbs: first, to hold parties to their bargains to arbitrate; second, to monitor the basic integrity of the arbitral process, so the case will be heard by a fair tribunal that listens before deciding, stays within its mission, and respects the limits of relevant public policy. The chapter then discusses case studies that illustrate two issues that persistently vex courts and commentators: allocating tasks between judges and arbitrators; and determining what law applies to an arbitration clause.
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Margaret L, Moses. Part VIII Arbitrators’ Decision-Making Power and Arbitral Tribunals’ Cessation of Functions, 21 Inherent and Implied Powers of Arbitrators. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198783206.003.0022.
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The powers of arbitrators in international commercial arbitration are based on the agreement of the parties, usually set forth in an arbitration clause contained in a contract between the parties or in a separate agreement to arbitrate. Increasingly, however, arbitrators are exercising powers that are not derived specifically from a party agreement, but rather may be implied or inherent. The terms ‘implied’ and ‘inherent’ are frequently used rather loosely, and sometimes interchangeably. This chapter develops a framework for understanding and using the terms, so that parties, arbitrators, and courts can employ common meanings and concepts when considering arbitral powers. Implied and inherent powers, properly exercised, can help ensure that the arbitral process fulfils its promise of providing a fair, ethical, and reasonable way to resolve disputes.
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Mele, Alfred R. Arbitrary Decisions and the Problem of Present Luck. Oxford University Press, 2017. http://dx.doi.org/10.1093/acprof:oso/9780190659974.003.0007.
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This chapter focuses on a positive element of a typical libertarian view: namely, the thesis (LFT) that there are indeterministic agents who sometimes act freely when their actions—and decisions in particular—are not deterministically caused by proximal causes. LFT is the target of the problem of present luck—indeterministic luck at the time of decision. The bearing of such luck on LFT is explored, and two control-featuring arguments against event-causal libertarianism are rebutted: the same-control argument and the more-control argument. In addition, the freedom of some arbitrary decisions is explored, a mistaken reading of Alfred Mele’s work on luck is corrected, and skepticism about agent causation is discussed.
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Jonathan, Bonnitcha, Skovgaard Poulsen Lauge N, and Waibel Michael. 1 The Investment Treaty Regime in Context. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198719540.003.0001.
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This chapter charts the rise of the global network of more than 3000 investment treaties and of investment treaty arbitration. Investors have used investment treaties to ask for compensation for a very wide range of government conduct. The chapter surveys the investment treaty regime and the investment regime complex. The regime consists of three main components: (i) investment treaties; (ii) the set of treaties, rules, and institutions governing investment treaty arbitration; and (iii) the decisions of arbitral tribunals applying and interpreting investment treaties. The growing role of investment treaty arbitration has made it highly controversial in both developed and developing countries, and has transformed the investment treaty regime from an obscure field of international law to a central part of the investment regime complex.
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Joongi, Kim. 10 Setting Aside an Arbitral Award. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198755432.003.0010.
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This chapter considers the grounds for setting aside an arbitral award. It looks at cases where set-asides have occurred—due to invalid agreements, an excess of jurisdiction, the formation of a tribunal, and public policy arguments. The Arbitration Act’s provisions concerning set-aside closely follow the Model Law and New York Convention. The chapter, however, also discusses other pre-Model Law grounds for a set-aside, such as when ‘a decision has been omitted regarding an important matter that would affect the judgment’. Moreover, the chapter explores the effects of a set-aside, before closing with some arguments raised by leading arbitration scholars.
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Michael, Young. Part III International Arbitration Agreements: Issues and Perspectives, 10 Silent Talk: Identifying the Language of an Arbitration When the Arbitration Clause Is Silent. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198783206.003.0011.
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Language is a fundamental part of legal practice: without it, lawyers cannot function. But despite its importance, the applicable language is addressed rarely in a dispute resolution clause. Given its potent impact, the parties often disagree over which language (or languages) should apply where the clause is silent. This chapter considers the tools available to an arbitral tribunal to identify the language of the arbitration and to maintain the applicable language of the proceedings, while affording the parties flexibility in how they present their cases and ensuring that the matter proceeds efficiently. As with all discretions, this exercise must be carried out properly and fairly. In reaching their decisions, tribunals should not be confined by strict presumptions or priorities; they must assess all of the available indicia, weighing each element in the balance.
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Bernard, Rix. Part X Judicial Review, Judicial Performance, and Enforcement, 29 Judicial Review of the Merits of Arbitration Awards under English Law. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198783206.003.0030.
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This chapter considers the history of judicial review of the merits of arbitration awards in the courts of England. Topics discussed include arbitration before and during the nineteenth century; the English Arbitration Act 1979; the decision in The Nema, a case which concerned the possible frustration of a seven-voyage consecutive voyage charter due to a prolonged strike at the loading port; and section 69 of the English Arbitration Act 1996. The chapter concludes by referring to Lord Wilberforce’s parliamentary observation cited by Lord Steyn in Lesotho Highlands Development Authority v Impregilo SpA. The case raised an issue under section 68(2)(b) of the 1996 Act as to whether the arbitral tribunal had ‘exceed[ed] its powers’. The House of Lords held that an erroneous exercise of a power that was possessed was a mere error of law and not the same thing as acting in excess of powers that were not possessed; and that therefore the award could not be challenged. In the context of arbitration, the House of Lords was determined to allow no possibility that errors of law might be dressed up as decisions in excess of powers. That would have opened the floodgates to the opportunities for judicial intervention in the merits of disputes.
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Emmanuel, Gaillard, and McNeill Mark. Part I Investment Treaties and the Settlement of Investment Disputes: The Framework, 2 The Energy Charter Treaty. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198758082.003.0002.
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The landscape of investment arbitration has shifted dramatically, with Europe — and the Energy Charter Treaty (ECT) — playing important roles in that transition. As the number of investment treaty arbitrations continues to mount, the ECT remains the most frequently invoked investment agreement with over 100 publicly known arbitrations filed to date. This chapter begins with some brief remarks on the genesis of the ECT. Each subsequent section focuses on a different aspect of the Treaty’s investment-related features, including the definitions of ‘Investor’ and ‘Investment’ in Article 1 of the ECT; the denial of benefits provision in Article 17(1), the Treaty’s substantive investment protections in Part III; and the dispute resolution mechanisms in Articles 26 and 27. Where useful, the chapter compares the Treaty’s text with analogous provisions in other investment agreements and addresses relevant arbitral decisions under the ECT.
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Loretta, Malintoppi, and Yap Alvin. Part II Guide to Key Preliminary and Procedural Issues, 8 Challenges of Arbitrators in Investment Arbitration: Still Work in Progress? Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198758082.003.0008.
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The independence and impartiality of arbitrators continue to be an actively debated issue, partly due to the perceived opaqueness and inconsistency of challenge decisions and the standards to be applied to those challenges. This has in turn elicited responses on three fronts, each of which is addressed in this chapter. First, arbitral institutions have recently either revised their rules and practices or introduced more innovative approaches to challenges of arbitrators. This is mirrored by the adoption of dedicated guidelines by professional associations on issues relating to conflicts of interests of arbitrators. Second, some States have introduced their own codes of conduct for arbitrators in bilateral and multilateral investment treaties and in the investment chapters of free trade agreements, which are designed to take precedence over the institutional rules governing the arbitration. Third, changes in the way challenges are being decided by arbitrators and appointing authorities have also emerged.
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Schill, Stephan W. Sources of International Investment Law. Edited by Samantha Besson and Jean d’Aspremont. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198745365.003.0051.
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This chapter discusses the use of sources of international law in the settlement of disputes arising under bilateral, regional, multilateral investment treaties and investment chapters in free trade agreements, focusing specifically on particularities this field of international law displays in comparison to general international law. It first addresses the importance of bilateral treaties in international investment law and shows that their bilateral form is not opposed to the emergence of a genuinely multilateral regime that behaves as if it was based on multilateral sources. The chapter then considers the pre-eminent importance arbitral decisions assume in determining and developing the content of rights and obligations in the field. Next, the chapter looks at the increasing influence of comparative law and the influence of soft law instruments. It argues that the specific sources mix in international investment law is chiefly connected to the existence of compulsory dispute settlement through investment treaty arbitration and the sociological composition of those active in the field.
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Krieger, Heike, Anne Peters, and Leonhard Kreuzer, eds. Due Diligence in the International Legal Order. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780198869900.001.0001.
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Due diligence is a prominent concept in international law. Still, for long, its role seemed to be that of a familiar stranger. Frequent referrals to the concept in arbitral awards, court decisions, and in scholarly discussions mostly on state responsibility hide the fact that the specific normative content and systemic relation of due diligence to rules and principles of international law has largely remained unexplored. The present book provides the first comprehensive analysis of the content, scope, and function of due diligence across various areas of international law, including international environmental law, international peace and security law, and international economic law. Sector by sector, contributors explore the diverse interactions between due diligence and area-specific substantive and procedural rules as well as general principles of international law. The book exposes the promises and limits of due diligence for enhancing accountability and compliance and identifies the rise of due diligence as a signal for change in the international legal order towards risk management and proceduralisation.
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Nigel, Blackaby, Partasides Constantine, Redfern Alan, and Hunter Martin. 4 Establishment and Organisation of an Arbitral Tribunal. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198714248.003.0004.
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This chapter describes the creation of the arbitral tribunal, the step in the arbitration process that follows the decision to start arbitration. Choosing the right arbitral tribunal is critical to the success of the arbitral process. It is a choice that impacts not only on the parties to the particular dispute, but also on the reputation and standing of the process itself. It is, above all, the quality of the arbitral tribunal that makes or breaks the arbitration, and it is one of the unique factors distinguishing arbitration from national judicial proceedings. There are several different methods of appointing an arbitral tribunal, of which the chapter enumerates and discusses the six most usual: by agreement of the parties; by means of the list system; by the co-arbitrators appointing a presiding arbitrator; by a professional institution or a trade association, such as the ICC; and by a national court.
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Sherk, Murray Wayne. Linear and arbitrary predicates in decision trees for element distinctness. 1986.
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Greg, Fullelove. Part VIII Arbitrators’ Decision-Making Power and Arbitral Tribunals’ Cessation of Functions, 24 Functus Officio? Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198783206.003.0025.
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This chapter examines the meaning of the principle of functus officio. The expression is used to refer to the point when the arbitral tribunal has discharged its duty in full and can no longer act. This point is generally held to be when the tribunal has concluded all matters with which it has jurisdiction to deal pursuant to a particular arbitration agreement. But while the principle itself may be superficially straightforward, its scope and application in certain cases have raised issues. The chapter asks: When can the tribunal be sure that its mandate is complete, i.e. officio functus est? When, if ever, can the arbitrators definitively say that they are ‘free’ of their duties in an arbitration? It suggests that it would be wrong to believe that a tribunal has certainly finished its work when it sends the final award to the parties. In many jurisdictions and under the leading arbitration rules, there will still be a continuing but reduced mandate to correct, interpret, and/or revise the award and perhaps to issue additional awards.
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Stephen, Jagusch, and Triantafilou Epaminontas E. 10 London. Oxford University Press, 2014. http://dx.doi.org/10.1093/law/9780199655717.003.0011.
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This chapter summarizes the key aspects of the English legal system with respect to the role of courts in arbitrations seated in England and Wales. First, it highlights the key provisions of relevant English legislation, mainly of the English Arbitration Act of 1996 and the principal court decisions arising under that legislation. Second, it describes the manner in which English law as the law of the seat affects the role of English courts in the course of three discrete stages: before the award, after the award, and during recognition and enforcement. In the process and where necessary, it addresses and ultimately rejects recently articulated concerns questioning the supremacy of England and Wales as an arbitration seat. The chapter concludes that England and Wales possesses a comprehensive and clearly articulated legal framework governing arbitration, and a sophisticated, impartial judiciary with ample experience in complex arbitral disputes and the collateral issues they raise under both English law and foreign laws and regulations. The jurisdiction is distinctly arbitration-friendly, with a keen understanding of the benefits arbitration aims to confer on parties, and the policy considerations such benefits entail.
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Hiroshi, Oda. Russian Arbitration Law and Practice. Oxford University Press, 2020. http://dx.doi.org/10.1093/law/9780198712442.001.0001.
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This book represents an analysis of Russian arbitration law from a foreign lawyer’s point of view. Russian arbitration law went through a major reform in 2015. The overall goal of the reform was to make Russia an attractive venue for arbitration with the expectation of soliciting foreign businesses to Russia and preventing ‘off-shorisation’ of Russian businesses. The book covers the reform process at the outset by studying various reform proposals, draft laws and discussion of arbitration experts. This is followed by a comprehensive analysis of the post-reform system of arbitration. After addressing issues such as arbitrability, arbitration clauses, arbitral procedure; the book looks into the way Russian courts apply arbitration law when Russian parties apply to the court for setting aside the awards and when foreign parties apply for recognition and enforcement of the awards. For this goal, court decisions have been extensively studied and reproduced in the book. The book is a critical analysis of the current system of arbitration in Russia which will provide practical guidance to lawyers involved in disputes with Russian parties, drawing on the author’s own practical insight and experience.
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Sonja, Meier. Ch.11 Plurality of obligors and of obligees, s.1: Plurality of Obligors, Art.11.1.8. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0221.
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This commentary analyses Article 11.1.8 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the effects of the court's decision as to the liability to the obligee of one joint and several obligor. The obligee can commence judicial or arbitral proceedings against all the obligors together. In that case, the court decision will bind the obligee and all the obligors because they are all parties to the legal proceedings. Under Art 11.1.8(1), a decision by a tribunal (state court or arbitral tribunal) has no effect on the other obligors, neither on their obligations towards the obligee nor on the rights of recourse. This commentary explains the effects of a decision in favour of the obligee and in favour of the obligor.
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Silja, Schaffstein. Part II The Doctrine of Res Judicata in International Commercial Arbitration, 3 Res Judicata Issues Arise in International Commercial Arbitration. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198715610.003.0004.
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This chapter presents varying situations in which issues concerning the res judicata doctrine arise before arbitral tribunals. These situations may be sorted into four categories, based on the nature of the court or tribunal having rendered the first final and binding decision. First, situations that arise between arbitral tribunals and state courts; second, between different arbitral tribunals; third, within a same arbitration proceeding between a partial and a final award and lastly, between supra national courts or tribunals and arbitral tribunals. The fourth category concerns mostly investment protection treaty cases. Because of the proliferation of multiple proceedings and an increasing bifurcation of arbitration proceedings, the number of cases in which arbitrators will have to deal with res judicata issues will also increase.
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Yvonne, Baatz. Part II To Arbitrate or Not to Arbitrate? The Grey Area of Contracts of Carriage, 7 Incorporation of a Charterparty Arbitration Clause into a Bill of Lading and its Effect on Third Parties. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198757948.003.0007.
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This chapter discusses the practice of incorporating charterparty arbitration clauses into bills of lading and examines recent decisions of the English courts which have tended to take a flexible and liberal approach in determining the effectiveness of such incorporation. It notes that a restrictive approach to the recognition of the validity of such arbitration clauses results in a highly uncertain position for a carrier who may find itself having to arbitrate in different locations to respond to different claims arising out of the same incident. It also criticizes the European Court of Justice’s decision in Allianz SpA (formerly RiunioneAdriatica di SicurtaSpA) v West Tankers Inc (The Front Comor). The case has created the potential of much confusion on the enforceability of a charterparty arbitration clause incorporated into a bill of lading, and creates unnecessary unpredictability and the heightened potential of litigation costs to determine preliminary issues.
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David J, Sandy. Part XI Public Policy and Abuse of Process, 33 The Role of Abuse of Process in Protecting the Integrity of Arbitration Awards. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198783206.003.0034.
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Although arbitration awards are final and binding, losing parties may sometimes commence a second set of proceedings on slightly different grounds from the first in an attempt to raise doubt over the status and enforceability of the first award and/or to delay enforcement. In England, the doctrine of abuse of process has been utilized to prevent a second action being pursued. The English courts have developed the principle to prevent collateral attacks on prior judgments and, now, arbitral awards and by so doing, ensure the finality of judgments and awards. This chapter outlines the reasoning behind these decisions and asks whether there is a basis upon which such powers should be available in arbitration more generally, whatever the seat, rules, procedural or governing law. Should the principle of abuse of process, in so far as it prevents a collateral attack on a prior arbitration award, be a power which is generally available to tribunals? If so, what is the source of that power and how should it be exercised? Will arbitration benefit from the recognition of this principle? The chapter suggests that, in most cases, the source of the principle of abuse of process can be more readily found in the parties’ private agreement rather than having to be located in the public policy of any system of law which might be applicable.
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Frédéric Gilles, Sourgens, Duggal Kabir, and Laird Ian A. Part V Safeguarding the Process, 12 Evidence and Annulment. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198753506.003.0012.
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This chapter considers annulment in the context of the International Centre for Settlement of Investment Disputes (ICSID). Here, annulment controls the process of arbitral decision-making rather than its result. As a control mechanism, annulment is centrally concerned with the question whether a tribunal applied the principles of evidence codified in arbitral procedure or cast those same principles aside to make a decision on a completely different basis. Parties perceive the legitimacy of a process of dispute settlement in terms of the predictability with which decision-makers appraise their factual submissions. As such, principles of evidence are central to the mission of annulment to ‘maintain the vitality and integrity of a process of dispute resolution by providing the degree of supervision sufficient to correct violations of parties’ expectations in a way that sustains confidence in the efficiency and fairness of ICSID arbitration’.
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A Prototype Acoustic Battlefield Decision Aid Incorporating Atmospheric Effects and Arbitrary Sensor Layouts. Storming Media, 1998.
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