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Journal articles on the topic 'Arbitral decisions'
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1
Prytyka, Yu, and D. Prytyka. "NEWLY REFORMED PROCEEDINGS OF THE ARBITRATION AWARDS REVIEW AND INTERNATIONAL COMMERCIAL ARBITRATION AWARDS APPEAL IN CIVIL PROCEDURAL LEGISLATION OF UKRAINE." Bulletin of Taras Shevchenko National University of Kyiv. Legal Studies, no. 110 (2019): 29–35. http://dx.doi.org/10.17721/1728-2195/2019/3.110-6.
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This article deals with the novelties of the reformed procedural legislation of Ukraine on appealing the decision of arbitration court and international commercial arbitration, as well as on new approaches to determining the legal nature of the proceedings in cases of appealing arbitration awards. At the same time, this study shows that the specific practical problems of a unified approach to terminology absence, in particular, "appeal" by arbitral tribunal or "challenge" by international commercial arbitration, still remain. In this article the problems of determining the objects of appeal and the expansion of the range of subjects of appeal against the decisions of arbitral tribunals, as well as the disputable issues, determining the jurisdiction of this category of cases are also considered. Special attention is paid to the examining the procedure for reviewing applications for annulment of decisions of the arbitral tribunal and international commercial arbitration, in particular the initial stage of production, time limits for challenging the arbitration award. Taking this into account, authors identify the ways to resolve the abovementioned practical problems, as well as the prospects for further reform of the judicial review institution over the enforcement of arbitral tribunals and international commercial arbitration decisions. In conclusion, authors prove, that the activity of national courts does not include the revision of the decisions of arbitration courts and international commercial arbitrations, since national courts do not check the legality and validity of the decisions; they do not review the substantive decision. In this case we consider a special mechanism for the control over the abuse of arbitrators' powers granted to them by law and by the parties to the arbitration agreement during the dispute resolution.The purpose of an appeal is to provide the interested party with the opportunity to apply limited judicial review of the arbitral award.
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Kravtsov, S. "THE APPEAL OF INTERNATIONAL COMMERCIAL ARBITRATION AWARDS AS A FORM OF JUDICAL CONTROL BY NATIONAL COURTS." Bulletin of Taras Shevchenko National University of Kyiv. Legal Studies, no. 110 (2019): 8–16. http://dx.doi.org/10.17721/1728-2195/2019/3.110-2.
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The appeal of the international commercial arbitration awards is a major issue in the dispute settlement mechanism for arbitration governed by multilateral conventions, bilateral treaties and national laws, as well as by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. Notwithstanding the importance of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, it restricts to a certain extent the scope of legal protection of arbitral awards, as it leaves national courts to challenge them by the way of possible annulment, and national courts when considering petitions for annulment decisions are vested in the power to revoke such decisions. In this respect, the resolution of these issues may raise the issue of the correlation between the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 and domestic legislation of the countries in which the relevant decision may be challenged. The specific of the international commercial arbitration decision is that it cannot be appealed to any higher court. However, the absence of any form of control over the arbitral award could lead to the enforcement of such decisions, which, if rendered within the judicial system, would be overturned or modified by a higher court. Therefore, there is an institution for challenging arbitral awards in national courts. Due to the fact that the arbitration award is a form of control by national courts, the regulation of this institution is defined in the legislation of each individual country, and at the international legal level only certain aspects are regulated. These are the European Convention of 1961 and the New York Convention of 1958.
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Viñuales, Jorge, and Frank Spoorenberg. "Conflicting Decisions in International Arbitration." Law & Practice of International Courts and Tribunals 8, no. 1 (2009): 91–113. http://dx.doi.org/10.1163/157180309x429669.
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AbstractThere has been much discussion recently, both in academic and practitioner circles, about inconsistency in international arbitration. The debate has concentrated on specific topics such as contradictory arbitral awards, the precedential value of arbitral awards, the creation of an appeal system, or the need for increased transparency. The present study argues that such debate has overlooked the fact that some, and perhaps most, of the perceived problems are a reflection of the underlying values that make international arbitration appealing to international economic actors. Specifically, the authors argue that instead of concentrating on far-reaching reforms, commentators should focus on refining currently existing techniques to deal with conflicting decisions in international arbitration.
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Uzelac, A. "Number of Arbitrators and Decisions of Arbitral Tribunals." Arbitration International 23, no. 4 (December 1, 2007): 573–92. http://dx.doi.org/10.1093/arbitration/23.4.573.
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Calamita, Nicolas Jansen, and Elsa Sardinha. "The Bifurcation of Jurisdictional and Admissibility Objections in Investor-State Arbitration." Law & Practice of International Courts and Tribunals 16, no. 1 (June 21, 2017): 44–70. http://dx.doi.org/10.1163/15718034-12341341.
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The practice of arbitral tribunals is notably consistent with respect to articulating the fundamental values which need to be balanced in deciding whether to bifurcate preliminary objections with respect to jurisdiction or admissibility. Moreover, there is substantial consensus on the issues or factors which ought to be evaluated by arbitral tribunals exercising their discretion under the relevant rules. What the decisions appear to lack, however, is rigorous evaluation of the likely time and costs effects of the decision to bifurcate or not. Ensuring that the parties produce information relevant to the decision whether to bifurcate rests with tribunals and the way in which they manage the proceedings before them. Tribunals ought not rely upon the parties to produce such information on their own. Instead, tribunals can and should proactively request such information in order to better carry out their judicial function. Improving the analytical rigour and depth of the analysis behind bifurcation decisions would not only improve tribunals’ conclusions, but also bolster the legitimacy of those decisions.
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Metsch, Rutger, and Rémy Gerbay. "Prospect Theory and due process paranoia: what behavioural models say about arbitrators’ assessment of risk and uncertainty." Arbitration International 36, no. 2 (June 1, 2020): 233–52. http://dx.doi.org/10.1093/arbint/aiaa017.
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Abstract The term ‘due process paranoia’ is used to describe a perceived reluctance by arbitral tribunals to act decisively in certain situations for fear of the arbitral award being challenged on the basis of a party not having had the chance to present its case fully. This article approaches due process paranoia from the perspective of Prospect Theory, which is a behavioural model describing how individuals make decisions under risk and uncertainty. The authors examine how Prospect Theory’s insight that decision makers tend to overweight low-probability events in their decision-making (the ‘possibility effect’) affects decision-making by arbitrators when faced with the threat of challenge to their awards on due process grounds (the ‘enforcement risk’). The article concludes that the possibility effect is prone to contribute to an overweighting by arbitrators of the enforcement risk, thereby explaining the perceived tendency by tribunals to make sub-optimal decisions when faced with due process-related complaints or threats.
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Antonov, Mikhail. "Foreign Court Decisions, Arbitral Awards and Sovereignty in Russia." Review of Central and East European Law 38, no. 3-4 (2013): 317–40. http://dx.doi.org/10.1163/15730352-00000006.
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This chapter examines a number of theoretical difficulties related to the implementation, in Russia, of the decisions and awards of foreign courts and arbitral tribunals. Along with the normative conditions for recognizing and enforcing foreign decisions, the author draws attention to the educational background of legal professionals— especially judges—in Russia. It is suggested that the statist conception of law inherited from Soviet legal scholarship implicitly leads to the contemporary Russian legal doctrine of negating the obligatory force of decisions from foreign courts. In the opinion of the author, the core of this conception resides in the traditional concept of sovereignty, which excludes the direct effect of legal acts made by foreign states, private arbitration tribunals, and international organizations. Nevertheless, there have been signs of a change in the attitude of the Russian judiciary in several key rulings by commercial courts. The author concludes that one now can observe seeing tendencies indicative of the development of a different concept of law in the mentality of legal professionals in Russia.
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Mendes Barbosa, Daniel, and Aline Lima Pessoa de Mendonça. "APONTAMENTOS SOBRE A ILEGITMIDADE DAS DECISÕES POR EQUIDADE NA ARBITRAGEM (ITEMS ON THE ILLEGITIMACY OF EQUITY DECISIONS IN ARBITRATION)." Revista de Processo, Jurisdição e Efetividade da Justiça 3, no. 1 (June 1, 2017): 1. http://dx.doi.org/10.26668/indexlawjournals/2017.v3i1.1948.
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O presente trabalho busca analisar a legitimidade das decisões proferidas por equidade no procedimento arbitral. Isso porque, ao se permitir que a equidade seja utilizada para fundamentar uma decisão, os destinatários da mesma não se reconhecerão como autores e, por conseguinte, a decisão proferida nada mais será que a visão idiossincrática do julgador em relação ao óbice apesentado para resolução. Com isso, o devido processo legal restará violado e a decisão, de acordo com o paradigma democrático, não será legitima. Através do método dedutivo, demonstrar-se-á a ilegitimidade das decisões proferidas por equidade. This work aims to examine the legitimacy of the decisions of equity in the arbitral proceeding. This because, allowing equity is used to support a decision, the recipients will not recognize _ as authors and therefore the decision is nothing more than a idiosyncratic vision of the judge regarding the dispute submitted to resolution. Thus, due process remain infringed and the decision, according to the democratic paradigm will not be legitimate. Through deductive method, will be demonstrating the illegitimacy of decisions of equity.
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Crow, Stephen M., James W. Logan, and Lillian Y. Fok. "Illicit Drug Effects in Labor Arbitration Decision Making." Journal of Drug Issues 24, no. 3 (July 1994): 489–505. http://dx.doi.org/10.1177/002204269402400309.
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Two hundred twenty-six arbitration outcomes in alcohol and drug disciplinary cases were investigated to examine illicit drug effects on arbitral decision making. We examined these effects on arbitrators' final decisions and the standards or decision cues that arbitrators use to justify their decisions. We also examined interactions of illicit drugs and standards of proof and looked at decisions in two different time spans to determine if changing societal attitudes about alcohol and drugs might have an effect. In this study, arbitrators were less lenient with illicit drug users than with legal drug users. This finding suggests that an illicit drug effect may exist in other distributive justice scenarios.
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Chen, Meng, and Chengzhi Wang. "Vanishing Set-Aside Authority in International Commercial Arbitration." International and Comparative Law Review 18, no. 1 (June 1, 2018): 127–54. http://dx.doi.org/10.2478/iclr-2018-0029.
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Summary Traditional set-aside theory is subject to considerable challenges as a result of an uncompromising trend towards autonomy and internationalism in international arbitration. The silence and ambiguity of international law regarding enforcement of set-aside arbitral awards allow some states to abandon their own set-aside authority or ignore set-aside decisions made by competent courts. This article presents a range of evidence that demonstrates the enforcement of set-aside arbitral awards has become a common phenomenon. This article first introduces robust academic debates regarding set-aside authority. Then this article exposes omission and ambiguity in the legal source, which leads to confusion in enforcement proceedings of set-aside arbitral awards. This article describes and analyses selected cases and practical data in order to summarize the approaches taken by national courts when reviewing foreign set-aside decisions. Finally, this article briefly evaluates the most promising solutions to the contradictory enforcement proceedings of set-aside arbitral awards.
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Flores Barraza, Eusebio F., and Yesenia Gastelum Ortega. "El TLCAN, un balance a 20 años de vigencia y desde lo procesal." BIOLEX REVISTA JURIDICA DEL DEPARTAMENTO DE DERECHO 12 (August 19, 2019): 51–62. http://dx.doi.org/10.36796/biolex.v12i0.79.
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En el presente trabajo encontraremos un breve recorrido histórico, producto de las decisiones de los tribunales arbitrales que han resuelto en 10 años de del NAFTA (aunque ya cumplió 21 años); lo que nos muestra un buen indicador de: hacia dónde vamos y cómo vamos en el país con respecto a USA y Canadá Abstract. Inside this dissertation we find a brief historical product of the decisions of arbitral tribunals that have been resolved in 10 years of NAFTA (although, it turned 21); which shows us a good indicator about: where we're going and how we're going in our country respect to USA and Canada Résumé. Au present travail nous trouverons un petit voyage histotrique, produit des desisions des tribunaux arbitraux qu'ils ont résolus dans 10 ans du NAFTA (maintenant, il a 21ans); ce qui nous montre un bon indicateur de: oú nous allons et comment nous allons en notre pay par rapport á les Etats-Unis et Canada.
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Farsia, Lena, and Rafika Taufik. "Penerapan Asas Ketertiban Umum terhadap Putusan Arbitrase Asing di Indonesia." Kanun Jurnal Ilmu Hukum 20, no. 3 (December 13, 2018): 439–56. http://dx.doi.org/10.24815/kanun.v20i3.11374.
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Penelitian ini ingin menjawab interpretasi dan pelaksanaan asas ketertiban umum terhadap putusan arbitrase asing di pengadilan Indonesia. Dengan berbasis pada penelitian hukum, penelitian diharapkan akan menjawab pengakuan dan pelaksanaan keputusan arbritase asing tersebut. Hasil penelitian menunjukkan bahwa pengecualian terhadap ketertiban umum ditemukan dalam Pasal V Paragraph 2 angka (b) Konvensi New York 1958 tentang Pengakuan dan Pelaksanaan Keputusan Arbitrase Asing. Konvensi menentukan bahwa pengakuan dan pelaksanaan putusan arbitrase dapat ditolak apabila kemudian ditemukan pengakuan dan pelaksanaan putusan tersebut melanggar ketentuan ketertiban umum di negara yang bersangkutan. Namun demikian, Konvensi tidak memberikan pengertian secara jelas tentang ketertiban umum, hal ini diserahkan kepada masing-masing negara peserta konvensi. Berdasarkan putusan pengadilan, konsep ketertiban umum yang diterapkan di Indonesia diinterpretasi secara luas dan domestik. The Implementation of Public Order Principle on Foreign Arbitral Awards in Indonesia This study aims to answer the interpretation and implementation of public order principle on foreign arbitral awards in Indonesian courts. Based on legal research, it is expected to answer the recognition and implementation of foreign arbitral awards. The results show that the exception to public order is found in Article V Paragraph 2 Number (b) of the 1958 New York Convention concerning the Recognition and Implementation of Foreign Arbitral Awards. The Convention stipulates that the recognition and implementation of an arbitral award can be rejected if later found that the recognition and implementation of the award violates the provisions of public order in the concerned country. However, the Convention does not provide a clear conception of public order, this is submitted to the respective countries participating in the convention. Based on a court decisions, the concept of public order applied in Indonesia was interpreted widely and domestically.
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Shao, Xuan. "Environmental and Human Rights Counterclaims in International Investment Arbitration: at the Crossroads of Domestic and International Law." Journal of International Economic Law 24, no. 1 (February 23, 2021): 157–79. http://dx.doi.org/10.1093/jiel/jgab001.
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ABSTRACT Recently, environmental and human rights (EHR) counterclaims in investment arbitration have attracted much attention as a vehicle to recalibrate the investor–state relationship. However, until now, successful instances of EHR counterclaims have been admittedly rare. As explained in this paper, some of the major barriers to EHR counterclaims in investment arbitration, and some of the concerns associated with them, are rooted in the domestic law basis of such counterclaims. Contrary to the position of several commentators, this paper argues that the grounding of EHR counterclaims on international law is neither practical nor beneficial, and EHR counterclaims are necessarily based on domestic law. Therefore, when investment arbitral tribunals adjudicate EHR counterclaims, they essentially act as an alternative to domestic courts. This has several implications. First, on questions of jurisdiction and admissibility of EHR counterclaims, decisions of states and arbitral tribunals essentially turn on the pros and cons of having these claims adjudicated by investment arbitral tribunals as opposed to domestic courts. Second, weaknesses in domestic rules, including the difficulty of holding shareholders accountable, would carry over to EHR counterclaims. Such problems can only be efficiently tackled at the level of domestic law. Third, as revealed from the inconsistent decisions in Perenco and Burlington on the merits of the environmental counterclaims, having investment arbitral tribunals adjudicate domestic law-based EHR counterclaims may cause certain concerns. For EHR counterclaims to play a more beneficial role, decision-makers must bear in mind these factors and concerns when taking their policy choices.
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Budylin, Sergey. "Judging the Arbiters: The Enforcement of International Arbitration Awards in Russia." Review of Central and East European Law 34, no. 2 (2009): 137–72. http://dx.doi.org/10.1163/157303509x406287.
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AbstractThis article is devoted to the issue of the enforceability in Russia of arbitral awards rendered pursuant to arbitration agreements between Russian companies or state agencies, on the one hand, and private firms operating outside of Russia, on the other. The emphasis is on the enforcement of arbitral awards rendered outside of Russia. Russian statutory law, international treaties to which Russia is a party and Russian court practice are discussed. The enforceability of foreign judicial decisions, as opposed to arbitral awards, in Russia is also briefly discussed.
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Fisher, E. G., and L. M. Sherwood. "Fairness and Managerial Rights in Canadian Arbitral Jurisprudence." Articles 39, no. 3 (April 12, 2005): 538–52. http://dx.doi.org/10.7202/050056ar.
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This paper examines the duty of fairness as applied to management's rights under collective agreements in common law jurisdictions and concludes from recent arbitral and judicial decisions that it is somewhat of a dead issue, although clarification may be required.
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Lanovoy, Vladyslav. "The authority of inter-state arbitral awards in the case law of the International Court of Justice." Leiden Journal of International Law 32, no. 3 (May 27, 2019): 561–84. http://dx.doi.org/10.1017/s0922156519000256.
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AbstractArticle 38(1)(d) of the Statute of the International Court of Justice attributes limited legal authority to judicial and arbitral decisions. They are not formal sources of law and are described as only subsidiary means for the determination of rules of law. However, the continuing validity of this characterization is challenged not only by the Court’s practice of referring to its own jurisprudence, a phenomenon that has been empirically and theoretically analysed elsewhere, but also its relatively new practice of relying on external case law. This article seeks to draw attention to one aspect of this new practice, namely the marked increase in the Court’s citation of inter-state arbitral awards since the 1990s. It is argued that the Court refers to inter-state arbitral awards in its decisions for three principal reasons – (i) to determine the existence of a given rule, (ii) to supplement its legal reasoning or its own case law on a particular issue, and (iii) to distinguish an arbitral award from the case before it. More ambitiously, the article argues that the way the Court relies on inter-state arbitral awards shows that the Court attributes legal authority to these awards that goes beyond that of a subsidiary means for determining a given rule of law, bringing it closer to what might be qualified as persuasive but non-binding precedent.
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SHAIMENOVA, Ardak, Gulzhazira ILYASSOVA, Yevgeniya KLYUYEVA, and Ainura KHASHIMOVA. "Development of the Institution of Arbitration in Kazakhstan: Problems of Theory and Practice." Journal of Advanced Research in Law and Economics 11, no. 1 (March 31, 2020): 169. http://dx.doi.org/10.14505//jarle.v11.1(47).21.
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The article discusses current issues of the application of the legislation of Kazakhstan on arbitration, provides statistical data on the results of consideration of cases on the cancellation of arbitral awards, on the enforcement of arbitral awards and identifies some problems of theory and practice in this area.
The aim of the study is a comprehensive analysis of judicial practice on the abolition of arbitral awards, as well as issues related to their enforcement, proposals have been developed on the formation of a uniform judicial practice and improvement of legislation. The work uses general scientific and special research methods: analysis, synthesis, abstraction, induction, deduction, logical and comparative legal method. As a result of the study, the author came to the conclusion that, in general, the norms of the Law of Kazakhstan ‘On Arbitration’, the Civil Procedure Code of Kazakhstan on the procedures for canceling arbitration decisions, recognition and enforcement of decisions of foreign arbitrations are consistent with international treaties.
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SHAIMENOVA, Ardak, Gulzhazira ILYASSOVA, Yevgeniya KLYUYEVA, and Ainura KHASHIMOVA. "Development of the Institution of Arbitration in Kazakhstan: Problems of Theory and Practice." Journal of Advanced Research in Law and Economics 11, no. 2 (March 31, 2020): 557. http://dx.doi.org/10.14505/jarle.v11.2(48).27.
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The article discusses current issues of the application of the legislation of Kazakhstan on arbitration, provides statistical data on the results of consideration of cases on the cancellation of arbitral awards, on the enforcement of arbitral awards and identifies some problems of theory and practice in this area.
The aim of the study is a comprehensive analysis of judicial practice on the abolition of arbitral awards, as well as issues related to their enforcement, proposals have been developed on the formation of a uniform judicial practice and improvement of legislation. The work uses general scientific and special research methods: analysis, synthesis, abstraction, induction, deduction, logical and comparative legal method. As a result of the study, the author came to the conclusion that, in general, the norms of the Law of Kazakhstan ‘On Arbitration’, the Civil Procedure Code of Kazakhstan on the procedures for canceling arbitration decisions, recognition and enforcement of decisions of foreign arbitrations are consistent with international treaties.
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Fouret, Julien, and Dany Khayat. "International Centre for Settlement of Investment Disputes (ICSID) Case Law Review." Law and Practice of International Courts and Tribunals 12, no. 1 (2013): 113–61. http://dx.doi.org/10.1163/15718034-12341246.
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Abstract The ICSID case law review aims at discussing all decisions published by ICSID arbitral tribunals during a given period of time. This review covers the last semester 2011 and the first trimester 2012 with the analysis of one order, nine decisions and four awards.
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SCHAER, M., N. I. GAIDAENKO SCHAER, and O. V. ZAYTSEV. "COMPULSORY ENFORCEMENT OF ARBITRAL AWARDS IN RUSSIA - A DANGEROUS LEGAL PRECEDENT HAS OCCURRED." Herald of Civil Procedure 10, no. 5 (November 30, 2020): 101–17. http://dx.doi.org/10.24031/2226-0781-2020-10-5-101-117.
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In this article, the authors study and analyze the recent decisions of the courts of general jurisdiction (the appeal ruling of the Judicial Collegium for Civil Cases of the Moscow City Court of 26 July 2019 in case No. 33-34038/19 and the ruling of the Second General Jurisdiction Court of Cassation of 12 March 2020 in case No. 88-3792/2020). The authors, in the process of analyzing these examples of law enforcement law, come to the conclusion that the lack of a pro-arbitration approach in the courts of general jurisdiction to the application of the provisions of the Civil Procedure Code of the Russian Federation on the procedure for enforcing decisions of arbitration courts may not only block for a long time decision, but also to help reduce the popularity of arbitration proceedings as a way to resolve commercial disputes in Russia. In addition, the researchers note that the existing norms of the procedural law contribute to the emergence of situations that increase the time and cost of enforcing the arbitral award and create additional risks, including those associated with both delaying the process and blocking the execution of the arbitral award.
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Fouret, Julien, and Dany Khayat. "International Centre for Settlement of Investment Disputes (Icsid) Case Law Review." Law & Practice of International Courts and Tribunals 12, no. 3 (2013): 475–530. http://dx.doi.org/10.1163/15718034-12341265.
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Abstract The purpose of the ICSID case law review is to present and discuss all awards, decisions and orders published by ICSID arbitral tribunals during a given period of time. This ICSID case law review covers a selection of awards, decisions and orders published during the second, third and fourth trimester of 2012 with the analysis of a total of six awards, eleven decisions and one order.
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Brower, Charles N., and W. Michael Tupman. "Court-Ordered Provisional Measures under the New York Convention." American Journal of International Law 80, no. 1 (January 1986): 24–42. http://dx.doi.org/10.2307/2202482.
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In recent years, several courts in the United States have denied requests for pre-award attachments on the ground that such remedies were contrary to the parties’ agreement to arbitrate, and thus to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention or Convention). Despite these decisions, pre-award attachment is an available remedy in certain jurisdictions in the United States. Furthermore, pre-award remedies to secure assets located outside the United States can be obtained through the courts in other countries.
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Harahap, Panusun. "THE IMPLEMENTATION OF INTERNATIONAL ARBITRATION DECISIONS IN INDONESIA AND SOME FOREIGN COUNTRIES." Yuridika 34, no. 1 (January 1, 2019): 116. http://dx.doi.org/10.20473/ydk.v34i1.11402.
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An international arbitration award handed down in a territory of a given country may be applied for in another territory, provided that it is a party to the 1958 New York Convention on the Recognition and Implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards and between those countries there are bilateral or multilateral agreements on the recognition and execution of international arbitration decisions. An arbitral award, as well as a judge's verdict may actually be voluntary by the loser or debtor. If the verdict has been executed in good faith by the losing party, or in other words his accomplishments have been met with good faith, then the problem is solved. It is not uncommon, however, that although the verdict is already in place, the losing party does not want to execute the verdict voluntarily. In this case the winning party or the creditor may submit an application to the Chairman of the Central Jakarta District Court for the international arbitration award to be executed by force (execution forcee).
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Campbell, Mark. "Setting aside arbitral awards in Singapore: due process and good faith obligations." Arbitration International 36, no. 3 (August 8, 2020): 429–40. http://dx.doi.org/10.1093/arbint/aiaa028.
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Abstract The Singapore Court of Appeal in CMNC v Jaguar Energy has offered clarification on what it identified as an ‘important area of arbitration law’: ie the correct approach to alleged violations of due process by tribunals in their management of the arbitral procedure. The case involved setting aside proceedings in the context of a complex dispute further complicated by the parties’ prior agreement for an expedited procedure. The Court of Appeal judgment takes a robust approach towards alleged due process violations. It emphasizes that the matter must be assessed according to a test of reasonableness and fairness with careful reference to the circumstances, and that courts should be cautious about interfering with a tribunal’s decision-making where there is a rational basis for those decisions. But CMNC v Jaguar Energy is notable for another reason: the presumption by the judge at first instance that there was implied into the arbitration agreement an obligation to arbitrate in good faith. That point may be of particular interest to those from common law jurisdictions where a more general debate over the role of good faith obligations in commercial contracts persists.
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Shen, Wei, and Shu Shang. "Tackling Local Protectionism in Enforcing Foreign Arbitral Awards in China: An Empirical Study of the Supreme People's Court's Review Decisions,1995–2015." China Quarterly 241 (September 11, 2019): 144–68. http://dx.doi.org/10.1017/s0305741019001164.
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AbstractIn an effort to fight against local protectionism in court enforcement proceedings, China's Supreme People's Court (SPC) promulgated its “Notice on relevant issues pertaining to the people's court handling foreign and foreign-related arbitration” in 1995. Pursuant to this Notice, all Intermediate People's Courts have to report to the SPC and obtain its approval for any decision not to enforce a foreign or foreign-related arbitral award. However, the effectiveness of this internal reporting mechanism in constraining local protectionism has never been empirically tested. This study is based on 98 publicly available non-enforcement reply opinions rendered by the SPC after lower courts have made and reported preliminary non-enforcement decisions. It analyses whether these non-enforcement decisions show any pattern of local protectionism. Statistical results do not suggest that local protectionism is a major barrier hindering effective enforcement of foreign or foreign-related arbitral awards in China. We therefore contend that this internal reporting system may serve other functions by providing an alternative tool to reinforce judicial oversight in spite of China's weak appellant system. At the same time, the Chinese government seems to rely on this internal reporting system to achieve important policy goals. In this sense, analysing the functionality of this internal reporting system offers insights into this mechanism for top-level judicial control.
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Lins, Carolina Barreira. "ARBITRATION AND PUBLIC POLICY IN BRAZIL: A STUDY BASED ON ‘LULA CASE’." PANORAMA OF BRAZILIAN LAW 4, no. 5-6 (May 26, 2018): 223–64. http://dx.doi.org/10.17768/pbl.v4i5-6.34434.
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This work examines the subject of jurisdiction and arbitrability of issues related to energy and natural resources in the world, in order to enhance the arbitration institute in Brazil. The study is based on a recent case pending in Brazilian courts, named “Lula case”, which refer to a dispute between the State and concessionaires that grant the right to explore and produce oil and gas in a determined area. The presence of arbitration clauses in the concession contracts for exploration and production of oil and gas in Brazil raises questions related to the disposability of the rights concerned. It is paramount to set benchmarks on arbitral tribunals’ power to decide on these matters and to define to what extent arbitral awards may defy public policy, national sovereignty over natural resources and national courts’ jurisdiction to render decisions in this regard. Otherwise, the randomness of judicial decisions makes the arbitration clause ineffective. Moreover, the Lula case arises substantive issues related to the necessity to protect investors in the oil and gas industry, since acts arguably connect to the State policy power may cause damages to the private parties. The work critically examines the decision given by national courts so far and proposes an international approach to face situations involving the State and the necessity to protect investors in the oil and gas industry.
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Lins, Carolina Barreira. "ARBITRATION AND PUBLIC POLICY IN BRAZIL: A STUDY BASED ON ‘LULA CASE’." PANORAMA OF BRAZILIAN LAW 4, no. 5-6 (May 26, 2018): 223–64. http://dx.doi.org/10.17768/pbl.v4i5-6.p223-264.
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This work examines the subject of jurisdiction and arbitrability of issues related to energy and natural resources in the world, in order to enhance the arbitration institute in Brazil. The study is based on a recent case pending in Brazilian courts, named “Lula case”, which refer to a dispute between the State and concessionaires that grant the right to explore and produce oil and gas in a determined area. The presence of arbitration clauses in the concession contracts for exploration and production of oil and gas in Brazil raises questions related to the disposability of the rights concerned. It is paramount to set benchmarks on arbitral tribunals’ power to decide on these matters and to define to what extent arbitral awards may defy public policy, national sovereignty over natural resources and national courts’ jurisdiction to render decisions in this regard. Otherwise, the randomness of judicial decisions makes the arbitration clause ineffective. Moreover, the Lula case arises substantive issues related to the necessity to protect investors in the oil and gas industry, since acts arguably connect to the State policy power may cause damages to the private parties. The work critically examines the decision given by national courts so far and proposes an international approach to face situations involving the State and the necessity to protect investors in the oil and gas industry.
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Lins, Carolina Barreira. "ARBITRATION AND PUBLIC POLICY IN BRAZIL: A STUDY BASED ON ‘LULA CASE’." PANORAMA OF BRAZILIAN LAW 4, no. 5-6 (May 31, 2017): 223–64. http://dx.doi.org/10.17768/pbl.y4.n5-6.p223-264.
Full textAbstract:
This work examines the subject of jurisdiction and arbitrability of issues related to energy and natural resources in the world, in order to enhance the arbitration institute in Brazil. The study is based on a recent case pending in Brazilian courts, named “Lula case”, which refer to a dispute between the State and concessionaires that grant the right to explore and produce oil and gas in a determined area. The presence of arbitration clauses in the concession contracts for exploration and production of oil and gas in Brazil raises questions related to the disposability of the rights concerned. It is paramount to set benchmarks on arbitral tribunals’ power to decide on these matters and to define to what extent arbitral awards may defy public policy, national sovereignty over natural resources and national courts’ jurisdiction to render decisions in this regard. Otherwise, the randomness of judicial decisions makes the arbitration clause ineffective. Moreover, the Lula case arises substantive issues related to the necessity to protect investors in the oil and gas industry, since acts arguably connect to the State policy power may cause damages to the private parties. The work critically examines the decision given by national courts so far and proposes an international approach to face situations involving the State and the necessity to protect investors in the oil and gas industry.
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Lins, Carolina Barreira. "ARBITRATION AND PUBLIC POLICY IN BRAZIL: A STUDY BASED ON ‘LULA CASE’." PANORAMA OF BRAZILIAN LAW 4, no. 5-6 (May 26, 2018): 223–64. http://dx.doi.org/10.17768/pbl.y4n5-6.p223-264.
Full textAbstract:
This work examines the subject of jurisdiction and arbitrability of issues related to energy and natural resources in the world, in order to enhance the arbitration institute in Brazil. The study is based on a recent case pending in Brazilian courts, named “Lula case”, which refer to a dispute between the State and concessionaires that grant the right to explore and produce oil and gas in a determined area. The presence of arbitration clauses in the concession contracts for exploration and production of oil and gas in Brazil raises questions related to the disposability of the rights concerned. It is paramount to set benchmarks on arbitral tribunals’ power to decide on these matters and to define to what extent arbitral awards may defy public policy, national sovereignty over natural resources and national courts’ jurisdiction to render decisions in this regard. Otherwise, the randomness of judicial decisions makes the arbitration clause ineffective. Moreover, the Lula case arises substantive issues related to the necessity to protect investors in the oil and gas industry, since acts arguably connect to the State policy power may cause damages to the private parties. The work critically examines the decision given by national courts so far and proposes an international approach to face situations involving the State and the necessity to protect investors in the oil and gas industry.
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Karton, Joshua. "The International Investment Arbitrator’s Duty to Apply the Law." Law & Practice of International Courts and Tribunals 17, no. 1 (June 27, 2018): 160–77. http://dx.doi.org/10.1163/15718034-12341374.
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Abstract This article explores the sources, nature, and implications of an arbitrator’s duty to decide according to the governing law in investor-state arbitrations. It advances a contractarian conception of arbitral authority in investor-state arbitration, whereby the agreement of the states parties to the investment treaty is the source of both the arbitrator’s power to make decisions and the primary constraint on that power: the duty to apply the law. It argues that the choice of law provisions in investment treaties have a constitutional character for arbitral tribunals, such that a failure to apply the chosen law constitutes an excess of the tribunal’s powers which, if manifest, justifies annulment or non-enforcement of the award. The article concludes by considering the implications of this contractarian theory of arbitral powers and duties for arbitrators, disputing parties, and states seeking to reassert control over the investor-state dispute settlement system.
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Oral, Nilufer. "“Rocks” or “ISLANDS” ?Sailing Towards Legal Clarity in the Turbulent South China Sea." AJIL Unbound 110 (2016): 279–84. http://dx.doi.org/10.1017/s2398772300009168.
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The Arbitral Award handed down by the Permanent Court of Arbitration (PCA) on 12 July 2016 in In the Matter of the South China Sea Arbitration between the Republic of the Philippines and the People’s Republic of Chinais undoubtedly one of the most anticipated decisions in recent memory.
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Lee, Zhao Yan. "The South China Sea Arbitration: The Decision and its Implications on the Sovereignty Claims of China and the Philippines." IIUM Law Journal 26, no. 2 (December 30, 2018): 335. http://dx.doi.org/10.31436/iiumlj.v26i2.379.
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The South China Sea Arbitration which has taken place recently with its final decision published in July 2016 was an action initiated by the Philippines against the People’s Republic of China in an attempt to oppose the latter’s claims of ‘historical rights’ in various maritime features in the South China Sea. The panel was constituted under Annex VII of the United Nations Convention on the Law of the Sea. The Chinese Government opposed the constitution, admissibility and ruling of the entire arbitration. It has since put forward many counter claims to refute the validity of the decision reached. China’s primary concern inevitably lies with the implications of the decision on the ‘Nine-Dash Line’, a historic graphical boundary line that has appeared in the Chinese national atlas as early as 1914. This article will qualitatively dissect the decisions made by the arbitral tribunal from a historical perspective, taking into account diplomatic correspondences and authoritative theories in public international law. Ultimately, this article aims to ascertain the implications of the arbitral rulings on the claims of sovereignty of both countries, which remain the terminal concern of the international community. It will be observed, that the ruling, albeit shrouded in irregularities, has posed irreversible impacts on the situation of the South China Sea saga.
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Abdallah, Amel K. "Islamic Sharia and arbitration in GCC States: The way ahead." International Review of Law 9, no. 2 (April 30, 2021): 318–36. http://dx.doi.org/10.29117/irl.2020.0114.
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Irrespective of the existence of a legislative environment complying with the most recent international texts in the field of Arbitration in most GCC states; such as UNCITRAL Model Law of international Commercial Arbitration, 1985, Islamic sharia may not be sufficiently clear to foreign investors and western jurists who might consider it as an impediment jeopardizing recognition and enforcement of arbitral proceedings in Arab states especially in GCC. This article clarifies the relationship between Arbitration and the real concepts of Islamic sharia, concluding that rules of Islamic sharia would not be an impediment to the enforcement of Arbitral Awards in GCC states. The article illustrates the real concept of Islamic sharia as a part of public policy and analyzes the attitudes of recent GCC legislations, and court decisions, concerning matters looking contradictory to Islamic sharia and might constitute a legal ground to challenge arbitral awards, such as religion and gender of Arbitrators, interest rates and aleatory contracts.
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Legault, L. H., and Blair Hankey. "From Sea to Seabed: The Single Maritime Boundary in the Gulf of Maine Case." American Journal of International Law 79, no. 4 (October 1985): 961–91. http://dx.doi.org/10.2307/2201833.
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Three decisions on maritime boundaries in a period of 9 months during 1984-1985 have doubled the body of case law on the delimitation of ocean space. The cases decided by international tribunals prior to 1984 applied only to the continental shelf. The waters overlying the shelf were either part of the high seas or, if subject to coastal state jurisdiction, were left undivided as between neighboring coastal states. However, two of the decisions rendered last year—the decision by a Chamber of the International Court of Justice in the Gulf of Maine case and the one by an ad hoc arbitral tribunal in the Guinea/Guinea-Bissau case—constituted the first judicial determinations of boundaries that divide jurisdiction over both the continental shelf and the water column beyond the territorial sea. The decision by the International Court of Justice in the Libya/Malta Continental Shelf case represented the fourth in a line of cases delimiting the continental shelf alone.
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Al-Khazaleh, Shams El-Din Qassem, and Sayel Mofleh Momani. "The Jordanian Legal Regulation for Implementing the Arbitral Award as an Executive Bond in accordance with the Jordanian Execution Law No. 25 of 2007." Journal of Politics and Law 11, no. 4 (November 30, 2018): 109. http://dx.doi.org/10.5539/jpl.v11n4p109.
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The implementation of the arbitral award is the final stage of the arbitration process, which is the substance of the arbitration agreement, since the control is based on the principle of the authority of the administration and as it is the focus of this research, the arbitration judgment, as well as the implementation of the arbitral award, will be discussed in addition to the terms of the enforceable judgment, as well as judicial control over the execution of the award to reach the result that the legislator was not successful in organizing methods of appeal by arbitration.
The Jordanian legislator adopted the broad concept of executive bonds and then not limited to judgments and decisions, but included official and ordinary bonds and tradable commercial papers. The executive bonds are the documents specified in the law of enforcement or any other law and are the reason for establishing the right to implement execution and Article 6 of the Jordanian Enforcement Law referred to this. In addition, the Jordanian Arbitration Law No. 31 of 2001 approved the implementation of the arbitrators' judgments if the court ruled to uphold these provisions.
The focus of our study was to implement the arbitral award as an executive bond and for its specificity as a judgment issued by natural persons with no jurisdiction. Only derive their task from the will of individuals. The parties to the dispute, but the reality that made the arbitration at the present time of the features that make it more acceptable by individuals to settle their disputes from resorting to the jurisdiction of the state, and respect for the legislator and his quest for stability and security made those decisions executive bonds under certain conditions are implemented through them. It is on this basis that this study is divided into sessions and we will address the concept of arbitral award. Then the implementation of the arbitration award and then we will discuss the terms of the arbitral award and enforceable judicial control over it and then move to the conclusion and its recommendations.
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Simpson, Patricia A., and Joseph J. Martocchio. "The Influence of Work History Factors on Arbitration Outcomes." ILR Review 50, no. 2 (January 1997): 252–67. http://dx.doi.org/10.1177/001979399705000204.
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This simulation study examines how work history factors affect arbitrators' decisions in absenteeism discharge cases. The authors analyze the responses of 179 arbitrators to survey questions concerning 32 hypothetical absence discharge cases in which four work history factors were systematically varied. Work history factors and due process considerations both are found to have influenced arbitral awards. Due process considerations (the degree to which management followed prescribed procedures) had the strongest impact, followed by previous absence history, prior disciplinary record, job performance, and seniority. The authors conclude that rehabilitative themes were prominent in these arbitrators' decision making. Other significant influences were the arbitrator's educational background, age, and experience.
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LAVRANOS, NIKOLAOS. "The MOX Plant and IJzeren Rijn Disputes: Which Court Is the Supreme Arbiter?" Leiden Journal of International Law 19, no. 1 (March 2006): 223–46. http://dx.doi.org/10.1017/s0922156505003262.
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The MOX Plant and IJzeren Rijn disputes illustrate the growing problem of concurrent jurisdiction between international courts and tribunals and the ECJ. This article argues that in cases in which Community law is involved in a dispute between two EC member states, international courts and tribunals must accept the exclusive jurisdiction of the ECJ under Article 292 of the EC Treaty to decide these cases. However, only the UNCLOS arbitral tribunal in the MOX Plant case stayed the proceedings and requested that the parties first find out whether the ECJ had jurisdiction, whereas the OSPAR as well as the IJzeren Rijn arbitral tribunals rendered their awards despite the implications of Article 292. Thus it appears that every arbitral tribunal decides the issue of Article 292 as it sees fit. This situation, it is argued, requires the creation of some sort of hierarchy between the growing number of international courts and tribunals in order to co-ordinate and harmonize their decisions so as to avoid a fragmentation of international law.
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Stute, David J. "28 USC § 1782—looking for consensus." Arbitration International 35, no. 3 (September 1, 2019): 331–45. http://dx.doi.org/10.1093/arbint/aiz018.
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Abstract Since the 1948 enactment of 28 USC § 1782 in the United States, no consensus has emerged as to the availability of federal court discovery to parties in private foreign or international arbitral proceedings. This year, within months of one another, six federal courts have issued rulings that are widely inconsistent on the availability of section 1782 discovery. The courts have ruled that a proceeding before a private international arbitral tribunal is eligible for section 1782 discovery; that, categorically, no such discovery is available; that the definition of private arbitral tribunal applies to CIETAC; and that discovery is available by virtue of a party’s parallel pursuit of discovery through foreign civil proceedings. As these cases demonstrate, recent US court decisions have brought no predictability, let alone certainty, to the subject. Congress, on the other hand, could and should amend the statute so as to include private tribunals in the scope of section 1782. This article discusses the case law’s state of disarray; proposes a legislative solution; considers the proposed amendment’s merits; and advocates for Congress to act.
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Petrochilos, Georgios C. "Enforcing Awards Annulled in their State of Origin under the New York Convention." International and Comparative Law Quarterly 48, no. 4 (October 1999): 856–88. http://dx.doi.org/10.1017/s0020589300063715.
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An impressive corpus of legal literature has accumulated in the last few years on the question whether it is possible or desirable to have an arbitral award enforced under the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards1despite the award's having been annulled in the State where it was made. The issue is important not only in the context of the New York Convention, which itself is the most widely used vehicle of recognition and enforcement of foreign arbitral awards,2but also in the context of other international documents3or national law provisions modelled on the Convention4and bilateral treaties that incorporate it by reference.5The debate has largely centred on two well-known cases,HilmartonandChromalloy. It is the purpose of this article to analyse those cases and other relevant case law and offer a comprehensive analysis of the relevance of judicial decisions of the State of origin for purposes of enforcement under the New York Convention. In doing so this article proposes to discuss both the technical aspects of the relevant provisions of the Convention, and in particular their interrelationship, and the issues of legal policy that arise. Though the discussion will touch upon the wider doctrinal question of the degree of independence of arbitral proceedings from the law of the arbitralsitus.
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Nafziger, James A. R. "International Sports Law as a Process for Resolving Disputes." International and Comparative Law Quarterly 45, no. 1 (January 1996): 130–49. http://dx.doi.org/10.1017/s0020589300058681.
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International sports law is more than a static set of rules and principles: it is better described as a process for avoiding and resolving disputes. Recent cases highlight its significance. TheSwiss Equestriancase,1decided by the Swiss Federal Tribunal, demonstrates the efficacy of using this process in cases involving issues of eligibility for competition. By contrast, theReynolds case,2decided by US federal courts, shows the folly of ignoring non-judicial remedies prescribed by international sports law. As a result,Reynoldsbecame a sort of Dickensian struggle involving three years of litigation and some nine decisions before the case was finally dismissed. The courts could have, and should have, reached the same result by simply enforcing decisions of the appropriate international sports federation and the arbitral tribunal that had upheld the federation's decision. The Harding case,3which was also decided in the United States, demonstrates that adjudication outside the prescribed process of international sports law is fundamentally unstable.
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De Brabandere, Eric. "OAO Neftyanaya Kompaniya Yukos v. Russia (Eur. Ct. H.R.)." International Legal Materials 55, no. 3 (June 2016): 474–95. http://dx.doi.org/10.5305/intelegamate.55.3.0474.
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On July 31, 2014, the European Court of Human Rights (ECtHR) rendered its final decision on a claim brought by the liquidated Russian company OAO Neftyanaya Kompaniya Yukos (Yukos) against the Russian Federation (Russia), a decision that is the last in a series of three decisions in this case relating respectively to the admissibility of the application, the merits, and just satisfaction.A couple weeks prior to the ECtHR’s decision, three arbitral tribunals established under the auspices of the Permanent Court of Arbitration (PCA) and functioning under the UNCITRAL Arbitration Rules had issued their final awards based on claims brought by three former shareholders of Yukos under the Energy Charter Treaty. The dispute, while brought by the shareholders of Yukos, in essence is the same as the one brought by Yukos against Russia before the European Court of Human Rights.
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Greenfield, Patricia A. "The Nlrb's Deferral to Arbitration before and after OLIN: An Empirical Analysis." ILR Review 42, no. 1 (October 1988): 34–49. http://dx.doi.org/10.1177/001979398804200103.
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The NLRB's 1984 decision in Olin Corporation established new guidelines making it more likely that the Board and its Regional Offices would defer, in unfair labor practice cases, to the prior decisions of arbitrators in those cases. Analyzing case file data in two NLRB Regional Offices for the January 1983-June 1985 period, the author questions the validity of some assumptions underlying the Olin decision and raises concerns about the consequences of the decision. She finds that the two offices frequently deferred to, and infrequently dissected, arbitral opinions even before Olin, and that subsequently the percentage of cases deferred rose even higher. Furthermore, following Olin, the Board's Division of Advice promulgated, and at least one of the two Regional Offices apparently adopted, an inferential form of analysis that may compromise the statutory rights of charging parties—particularly individual charging parties.
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Gastrell, L., and P. J. Le Cannu. "Procedural Requirements of 'Denial-of-Benefits' Clauses in Investment Treaties: A Review of Arbitral Decisions." ICSID Review 30, no. 1 (January 30, 2015): 78–97. http://dx.doi.org/10.1093/icsidreview/siu030.
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Schliemann, Christian. "Requirements for Amicus Curiae Participation in International Investment ArbitrationA Deconstruction of the Procedural Wall Erected in Joint ICSID Cases ARB/10/25 and ARB/10/15." Law & Practice of International Courts and Tribunals 12, no. 3 (2013): 365–90. http://dx.doi.org/10.1163/15718034-12341262.
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Abstract The legal standard on amicus curiae participation in international investment arbitration has been forged by the judicial development of legal rules and, in parallel, the modification of normative sources, such as the ICSID Arbitration Rules. Current and future decisions by arbitral tribunals on the participation of amicus curiae in a given dispute must abide by this consolidated standard. In June 2012, the arbitral tribunal in Joint ICSID Cases No. ARB/10/15 and No. ARB/10/25 released a procedural order, rejecting an amicus petition. This Order contains various deviations from the applicable legal standard and severely restricts the options for amicus participation. The recent attempt to strengthen the legitimacy of international investment arbitration by allowing for greater amicus participation and the acknowledgement of the interdependence of investment law and other areas of international law is thereby put in peril.
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López Zamora, Luis A. "Comentarios sobre el Orden Público Internacional en sede arbitral internacional, su funcionalidad y su interrelación con el Derecho internacional público = Some reflections regarding International Public policy in international arbitration, its functionality and its interdependence with Public International Law." CUADERNOS DE DERECHO TRANSNACIONAL 10, no. 2 (October 5, 2018): 516. http://dx.doi.org/10.20318/cdt.2018.4387.
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Resumen: El derecho del arbitraje internacional no es estrictamente internacional ni doméstico. A decir verdad, aquel cuerpo legal constituye un producto de la voluntad de las partes que han elegido resolver sus litigios mediante aquel tipo de mecanismo de solución de controversias. Ahora bien, aunque ello es así, dichas atribuciones presentan ciertos límites. Y es que, los laudos arbitrales internacionales formulados bajo aquellas libertades, son en estricto una forma de justicia privada y, como resultado de ello, los Estados en donde los mismos busquen ser ejecutados podrán rechazar su implementación en ciertas circunstancias. Una de aquellas circunstancias se produce cuando un laudo arbitral infringe el orden público (ordre public) del Estado donde éste busca ser ejecutado. Esta es una regla ampliamente reconocido, sin embargo, genera un problema. Y es que, la noción del orden público es contingente por naturaleza y, dado ello, ha sido necesario que su aplicación proceda solo en circunstancias excepcionales. Como resultado de esto, algunos académicos y tribunales estatales han tratado de formular una noción del orden público de tipo internacional con el fin de establecer un contenido más restrictivo a aquella excepción. Sin embargo, esta terminología ha sido construida solo como una forma de identificar una sub-sección del orden público estatal. Esto lleva a ciertas preguntas: ¿Está el arbitraje internacional y, sus instituciones, circunscritas a elementos puramente domésticos? ¿Dónde queda la faceta internacional de los contratos de comercio internacional y de inversiones si la excepción del orden público fuese a ser analizada desde un enfoque puramente estatal? Estas dudas han sido –tomadas en cuenta de alguna forma, en algunos sistemas legales, en donde el uso del orden público internacional ha sido estructurado en términos verdaderamente internacionales. Sin embargo, esto último también crea interrogantes a plantearse: ¿Qué implica hablar del orden público en el plano internacional? ¿Cuál es su contenido y, puede ser utilizado de forma práctica para excluir la ejecución de un laudo arbitral internacional? ¿Cuál es el rol del Derecho Internacional Público en todo esto? ¿Si el verdadero orden público internacional es utilizado, será aquel un punto de contacto entre el Derecho Internacional Público y el Derecho Internacional Privado? Estas y otras interrogantes serán tratadas en este espacio.Palabras clave: arbitraje internacional, orden público, orden público internacional, ejecución de laudos arbitrales, relación entre el derecho internacional público y el derecho internacional privado.Abstract: International arbitration is not domestic nor international in nature. In fact, the law applicable to that kind of proceedings can be considered a byproduct of the will of private parties. However, this wide attribution recognized to individuals have some limits. In this regard, it must be born in mind that arbitral awards represent a sort of private justice and, therefore, States requested to execute those kind of decisions can refuse their enforcement within their jurisdictions. One scenario that entails the non-enforcement of and arbitral award happens when the decision collides with the public policy (ordre public) of the State where is supposed to be implemented. This is widely recognized as a fundamental rule in international arbitration, nevertheless, a problem arises. The notion of public policy is contingent in nature and, because of that, it requires to be applied in very specific circumstances. That is why some academics and state tribunals have formulated the notion of international public policy as a term directed to narrow the content of that institution, but using to that end purely domestic legal content. In this sense, the term international public policy emerged as a merely sub-section of domestic public policy divested of any international meaning. In that context: ¿should international arbitration institutions (as the exception of ordre public), be understood by purely domestic elements? ¿Where would be the international aspect of international commercial contract or investment if the exception of public policy is analyzed by purely domestic constructions? Those doubts have pushed in some systems, the formulation of international public policy in truly international terms. This is somehow welcomed, however, this usage creates additional doubts: ¿What does a public policy of the international realm entail? ¿What is its content and, can that be used in practical ways to exclude the enforcement of and international arbitral award? ¿What is the role of Public International Law in all of this? ¿If truly international public policy is used by domestic tribunals, would that be a point of connection between Public International Law and Private International Law? These and other questions will be entertained in this paper.Keywords: international arbitration, public policy, international public policy, enforcement of arbitral awards, public international law – private international law relationship.
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Parlett, Kate. "Jurisdiction of the Arbitral Tribunalin Philippines V.China Under UNCLOS and in the absence of China." AJIL Unbound 110 (2016): 266–72. http://dx.doi.org/10.1017/s2398772300009144.
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It is not uncommon for decisions of international tribunals to be reported in the pages of the Washington Post or feature on the BBC News website. It is rather less common for awards to feature on the giant screens of New York’s Times Square. But less than two weeks after the Arbitral Tribuna lunder Annex VII to the United Nations Convention on the Law of the Sea issued its Awardin Philippines v.China, a three-minute video featuring China’s position was broadcast repeatedly on the screen better known forbroadcasting New Year’s Eve festivities than argumentation on the competence of international tribunals. The video asserted that China’s “indisputable sovereignty over [the South China Sea islands] has sufficient historic and legal basis” and that “the Arbitral Tribunalvainly attempted to deny China’s territorial sovereignty and maritime rights and interests in the South China Sea.” It further stated that “China did not participate in the illegal South China Sea arbitration, nor accepts the Awardso as to defend the solemnity of international law.” This latter statement goes to the very heart of the Arbitral Tribunal’s jurisdiction under the 1982 United Nations Convention on the Law of the Sea (the Convention) and its competence to decide the case despite China’s nonparticipation in the proceedings.
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Molina Esteban, Carlos. "Hybrid (institutional) arbitration clauses: party autonomy gone wild." Arbitration International 36, no. 4 (October 10, 2020): 475–89. http://dx.doi.org/10.1093/arbint/aiaa027.
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Abstract Hybrid institutional arbitration clauses are situations in which parties choose one arbitral institution to administer a case but under the rules of another arbitral institution. This forces institutions to adapt their organs to the chosen set of rules, making procedures more cumbersome and increasing litigiousness. As a consequence, hybrid arbitration clauses are a prime example of something parties may choose to do under the principle of party autonomy, yet shouldn’t do in the interest of safeguarding the principle of efficiency of arbitral procedure. This article analyses existing cases on the matter in order to extract conclusions as to how the interplay between party autonomy and efficiency operates in each case and at a broader level. While all decisions have upheld the validity of hybrid clauses, the analysed cases open up a whole set of additional questions, on which a consensus may not be reached: Does upholding the validity of hybrid arbitration really further party autonomy if institutions are heavily construing arbitration agreements? Should the choice of an administering institution or the choice of rules prevail? What weight should be attached to an institution's willingness to administer a case? These questions underscore the key tension between party autonomy and procedural efficiency.
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Alschner, Wolfgang. "Correctness of Investment Awards: Why Wrong Decisions Don’t Die." Law & Practice of International Courts and Tribunals 18, no. 3 (February 7, 2020): 345–68. http://dx.doi.org/10.1163/15718034-12341408.
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Abstract Correctness of arbitral awards is a central concern in current multilateral efforts to reform investor-state dispute settlement (ISDS). Aside from protecting the disputing parties from mistakes by tribunals (retrospective correctness), corrective review also guides future interpreters not to repeat past mistakes (prospective correctness). This article assesses how effective the three existing ISDS correction mechanisms – (1) review by annulment committees or domestic courts, (2) review by the contracting parties, and (3) review by subsequent tribunals – are in promoting such prospective correctness. After assessing existing practice, the article finds that wrong decisions “don’t die”. Annulled or set-aside awards continue to be cited, contracting states’ authoritative interpretations are disregarded, and subsequent tribunals do not converge around a jurisprudence constante. This failure of corrective mechanisms to achieve prospective correctness is due to lacking legal constraints, incentives to use favorable awards even if they have been invalidated, and the simple difficulty in telling whether an award still represents “correct” law in ISDS. The article concludes by proposing possible reforms to improve prospective correctness from the shepardization of awards, to rules on precedent, and broader institutional reform.
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Verge, Pierre. "Contracting-out at Arbitration." Relations industrielles 18, no. 2 (January 24, 2014): 162–96. http://dx.doi.org/10.7202/1021426ar.
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A comparative study of arbitral decisions rendered in the United States, the Canadian Common Law Provinces and Quebec over grievances arising in the contest of collective agreements that contain no specific provision on the subject out of Management's action of arranging with an outside firm to have it perform work hitherto done by members of the bargaining unit. The possible effect of new section 10a of the Quebec Labour Relations Act on this practice of contracting out will also be considered.
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Veziroglu, Cem. "Arbitration of Corporate Law Disputes in Joint Stock Companies under Turkish Law: A Comparative Analysis." European Company and Financial Law Review 16, no. 6 (December 6, 2019): 771–806. http://dx.doi.org/10.1515/ecfr-2019-0025.
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This study addresses the arbitrability of corporate law disputes and the validity of arbitration clauses stipulated in the articles of association (AoA) of joint stock companies, and compares Turkish law with German and Swiss jurisdictions in particular. While corporate law disputes are considered arbitrable, disputes concerning invalidity of corporate decisions and actions for dissolution are heavily debated. The paper argues that both types of disputes are arbitrable, albeit judicial dissolution requests accommodate practical hurdles. It is also argued that arbitral awards should be granted the erga omnes effect, as long as the interested third parties are provided with the necessary procedural protection. Furthermore, arbitration clauses can be validly stipulated in the AoA of privately held joint stock companies. However, the binding effect of the arbitration clause in question depends on its legal nature, namely, korporative or formell. Addressing this issue, the paper proposes to adopt a two-step test. Finally, it suggests practicable legislative recommendations and a model arbitration clause in order to enable and facilitate arbitration in corporate law disputes.