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Journal articles on the topic 'Arbitral tribunals'

Author: Grafiati

Published: 4 June 2021

Last updated: 22 June 2024

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1

Voser, Nathalie. "Recent Developments on the Doctrine of Res Judicata in International Arbitration from a Swiss Perspective: A Call for a Harmonized Solution." ASA Bulletin 33, Issue 4 (December 1, 2015): 742–79. http://dx.doi.org/10.54648/asab2015059.

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The Swiss Federal Tribunal has recently rendered three decisions addressing the issue of res judicata in the context of international arbitration, opening the door to possible developments of the doctrine of res judicata as applied in international arbitrations seated in Switzerland. This article elaborates on the Swiss Federal Tribunal's latest decisions on the topic and endeavors to challenge some of the core principles of the doctrine of res judicata as developed in the Swiss practice. The authors propose that arbitral tribunals apply the provisions of the lex arbitri (instead of Article II

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Meier, Andrea, and Yolanda Mcgough. "Do Lawyers Always Have to Have the Last Word? Iura Novit Curia and the Right to Be Heard in International Arbitration: an Analysis in View of Recent Swiss Case Law." ASA Bulletin 32, Issue 3 (September 1, 2014): 490–507. http://dx.doi.org/10.54648/asab2014054.

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This article examines the civil law principle of iura novit curia and its relationship with the parties' right to be heard in international arbitration, with a particular focus on recent Swiss case law. The principle of iura novit curia empowers arbitral tribunals in an arbitration seated in Switzerland to apply the law ex officio, without being limited to the legal arguments pleaded by the parties. The parties do not have a specifically protected right to be heard on the arbitral tribunal's legal assessment unless the tribunal intends to base its decision on a rule of law or legal concept the

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3

Walters, Gretta L. "Fitting a Square Peg into a Round Hole: Do Res Judicata Challenges in International Arbitration Constitute Jurisdictional or Admissibility Problems?" Journal of International Arbitration 29, Issue 6 (January 21, 2012): 651–80. http://dx.doi.org/10.54648/joia2012041.

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Parties in international arbitrations often raise res judicata challenges before arbitral tribunals and courts. But neither parties nor the tribunals or courts have been clear as to whether these challenges affect the admissibility of a claim or the tribunal's jurisdiction. A close analysis of arbitral awards and court decisions that address res judicata challenges reveals, however, that the question need not be as complicated as parties, tribunals, and courts have made it.

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Rose, Cecily. "Questioning the Role of International Arbitration in the Fight against Corruption." Journal of International Arbitration 31, Issue 2 (April 1, 2014): 183–264. http://dx.doi.org/10.54648/joia2014010.

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International arbitration does not represent a promising mechanism for the adjudication of corruption in the context of international business transactions, although parties appear to be raising allegations of corruption with increasing frequency in arbitration proceedings. This article surveys over fifty arbitral awards, spanning many decades, and rendered by tribunals of the International Centre for Settlement of Investment Disputes and the International Chamber of Commerce, tribunals applying the arbitral rules of the United Nations Commission on International Trade Law and the Iran-United

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Florescu, Cristina. "Arbitral Tribunal Power to Disqualify Unethical Counsel." Journal of Economic Development, Environment and People 4, no. 4 (December 24, 2015): 15. http://dx.doi.org/10.26458/jedep.v4i4.125.

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In specific matters of conflicts of interest ethical issues in connection with the parties' legal representatives could occur in the course of arbitration proceedings. The purpose of this paper is to identify and investigate the current status of the arbitral tribunals and arbitral institutions power to sanction counsel’s misconduct in the event of conflicts of interest. Parties have a fundamental right to choose the counsel and in the same time the right to an independent and impartial tribunal, therefore the source of the arbitral tribunal power to disqualify a counsel is a hot topic. There

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Hansen, Peter C. "The World Bank Administrative Tribunal’s External Sources of Law: The Next Chapter (2006–2010) (Part II)." Law & Practice of International Courts and Tribunals 11, no. 3 (2012): 449–97. http://dx.doi.org/10.1163/15718034-12341236.

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Abstract The World Bank Administrative Tribunal has begun its second quarter-century with a jurisprudential flowering of extraordinary proportions. Mr. Hansen’s study, which builds on his earlier 25-year retrospective, comprehensively surveys the Tribunal’s numerous doctrinal developments during this time. In this article, which is part two of two, Mr. Hansen revisits two of the four subjects explored in his retrospective: (i) the role of general legal principles as a source of Tribunal law, particularly with respect to the Tribunal’s recent and extensive due process jurisprudence; and (ii) th

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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 we

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Shore, Laurence, Vittoria De Benedetti, and Mario de Nitto Personè. "A Pathology (Yet) to Be Cured?" Journal of International Arbitration 39, Issue 3 (June 1, 2022): 365–78. http://dx.doi.org/10.54648/joia2022016.

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Fifty years ago, Frédéric Eisemann coined the expression ‘pathological clause’ to refer to arbitration clauses that substantially deviate from the essential requirements of a model clause. However, arbitration practitioners have not yet learned their lesson; the matter of pathology is far from being outdated. Arbitration clauses may be pathological if they do not provide for mandatory referrals to arbitration proceedings, or do not meet certain other requirements to provide for a workable arbitration procedure, or contain a reference to non-existing arbitral institutions and/or arbitral rules,

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9

Oetiker, Christian. "Witnesses before the International Arbitral Tribunal." ASA Bulletin 25, Issue 2 (June 1, 2007): 253–78. http://dx.doi.org/10.54648/asab2007025.

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It is commonplace before international arbitral tribunals sitting in Switzerland to conduct extensive examinations of witnesses. In the interest of admitting flexible solutions, national arbitration acts and institutional arbitration rules do usually not provide for detailed provisions as to the taking of evidence from witnesses. Nevertheless, it is obviously in the interest of all parties to arbitral proceedings that firm and clear rules are determined in this regard. It is the arbitral tribunal’s task to provide for rules which are adapted to the individual case. This article gives an overvi

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Poulain, Bruno. "Clauses de la Nation la Plus Favorisée et Clauses d’Arbitrage Investisseur-Etat: Est-ce la Fin de la Jurisprudence Maffezini?" ASA Bulletin 25, Issue 2 (June 1, 2007): 279–301. http://dx.doi.org/10.54648/asab2007026.

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The Most-Favored-Nation (MFN) clause is a provision by which contracting States to a bilateral investment treaty (BIT) commit to afford to ‘investors’ under the BIT a treatment not less favourable than that extended to other foreign investors. In the Maffezini case in 2000, the arbitral tribunal held that international arbitration is inextricably linked to the treatment of foreign investors and on this basis that the MFN clause may also apply to dispute settlement clauses. Such solution renders available to ‘investors’ under a given BIT encompassing an appropriate MFN clause more favourable di

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Chung, Janghwan. "ZF Auto. v. Luxshare: Supreme Court’s Withdrawal of Judicial Assistance for Discovery from Private Arbitration." Journal of International Arbitration 40, Issue 5 (October 1, 2023): 605–32. http://dx.doi.org/10.54648/joia2023025.

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Is the judicial assistance intended for the benefit of ‘foreign or international tribunals’ under 28 USC § 1782 available for private arbitral tribunals? The Supreme Court of the United States says it is not because that assistance is intended only for tribunals vested with governmental authority and private arbitral tribunals lack such authority. This strained reading of section 1782 appears to have been reached to achieve policy objectives, not through rigorous analysis of the statutory provision itself. Although the end the Court sought to achieve is not without merit, the means chosen by t

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J. Shaw, Gary, Michael Evan Jaffe, and Lindsey Mitchell. "Exercising Governmental Authority to Claim Section 1782 Assistance: What Does It Mean?" Journal of International Arbitration 39, Issue 6 (December 1, 2022): 863–80. http://dx.doi.org/10.54648/joia2022036.

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On 13 June 2022, the Supreme Court published a highly anticipated decision in two consolidated cases that limited the availability of 28 USC § 1782. The Court ruled (1) that § 1782 was only available to arbitral tribunals exercising governmental (sovereign) authority; and (2) that neither private contract-based arbitral tribunals nor many investor-state arbitral tribunals meet the sovereign authority test. From a broad strokes perspective, the Court’s narrow reading of § 1782 resolved the split among the Courts of Appeals. The decision left open, however, important questions that will no doubt

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Bieri, Sandra de Vito. "The application of EU law by arbitral tribunals seated in Switzerland." ASA Bulletin 35, Issue 1 (March 1, 2017): 55–66. http://dx.doi.org/10.54648/asab2017005.

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Arbitral tribunals with seat in Switzerland are required to apply EU law under various conditions: It seems fairly clear that the arbitral tribunal needs to apply EU law, if the parties have chosen the law of an EU member state as lex causae, as EU law forms in this case part of the chosen law. The same applies when the parties have forgone to make a choice of law and the closest connection test results in the application of the law of an EU member state. In case the parties have chosen a third state’s law as lex causae, the arbitral tribunal needs to consider EU law, if a party invokes its ap

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Macfarlane, Emma. "The Hague Rules on Third-Party Joinder: A Revised Framework." Michigan Business & Entrepreneurial Law Review, no. 10.2 (2021): 217. http://dx.doi.org/10.36639/mbelr.10.2.hague.

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This paper critically assesses the Hague Rules’ stance on third-party joinder. Third-party joinder is an important feature in business human rights disputes. It is a mechanism that victims of human rights abuses can use to bring claims against corporate defendants where the victims do not otherwise have an underlying agreement on which to base their claim. Keeping in line with traditional conceptions of commercial arbitration, the Hague Rules are grounded in party consent to arbitrate. Conceptions of consent therefore have an outsized impact on the universe of parties who can bring actions aga

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Dmitriev, Dmitry, and Sergey Patrakeev. "Russian Arbitral Tribunals Deal with Disputes Related to Real Estate." Business Law Review 32, Issue 10 (October 1, 2011): 257. http://dx.doi.org/10.54648/bula2011063.

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The Russian Constitutional Court has recently ruled on the question of capacity of an arbitral tribunal to consider disputes relating to immovable property, as the result of a dispute may be the transfer of rights to such property which is subject to state registration. The ruling opens the possibility that arbitral tribunals may resolve corporate disputes.

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Zaugg, Niklaus. "Objective scope of res judicata of arbitral awards Is there room for discretion?" ASA Bulletin 35, Issue 2 (May 1, 2017): 319–33. http://dx.doi.org/10.54648/asab2017028.

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In its landmark decision DFT 141 III 229 – also known as the “US law firm decision” –, the Swiss Federal Tribunal confirmed its previously established doctrine on the controlled transfer of a foreign award’s effects (“Kontrollierte Wirkungsübernahme”) when determining the objective scope of res judicata of a foreign arbitral award. The concept implies that the binding effect of a foreign award cannot go beyond the determinations contained in its operative (or dispositive) part. Such narrow approach to res judicata has been criticised by various authors. It is considered inappropriate in the co

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Gupta, Ritunjay. "Res Judicata in International Arbitration: Choice of Law, Competence & Jurisdictional Court Decisions." Asian International Arbitration Journal 16, Issue 2 (November 1, 2020): 193–220. http://dx.doi.org/10.54648/aiaj2020021.

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Given the twin goals of finality and efficiency, the doctrine of res judicata has come to be applied, although less frequently, in the international arbitration context as well. However, being largely perceived as a proverbial ‘twilight issue’ in international arbitration, its application is fraught with uncertainties and inconsistencies. Amongst the more compelling concerns regarding the subject matter, this Article tackles the ambiguities around the choice of law analysis for preclusion standards; the doubts regarding the arbitral tribunal’s kompetenz-kompetenz to address the issue; and the

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Gidoin, Anne-Sophie. "L« étape préalable » dans le nouveau droit de larbitrage et de la médiation OHADA." ASA Bulletin 36, Issue 3 (September 1, 2018): 578–96. http://dx.doi.org/10.54648/asab2018055.

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The new Uniform Arbitration Act, the new Rules of Arbitration of the Common Court of Justice and Arbitration (Abidjan) and the new Uniform Mediation Act, adopted by the Council of Ministers of 17 OHADA Member States of Western and Central Africa, entered into force on 15 March 2018. All three texts expressly grant arbitral tribunals the power to suspend the arbitral proceedings, if a party rightfully claims noncompliance with a mandatory pre-arbitral procedure, as may be imposed by a multi-tier dispute resolution clause. In that case, the non-compliance can be cured without the arbitral tribun

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Yaffe, Nathan. "Transnational Arbitral Res Judicata." Journal of International Arbitration 34, Issue 5 (October 1, 2017): 795–833. http://dx.doi.org/10.54648/joia2017038.

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Commercial arbitral awards are universally recognized to give rise to res judicata, but confusion reigns over what law applies to the res judicata effect of a prior arbitral award asserted before a subsequent tribunal. National res judicata laws diverge on key questions such as the availability of issue estoppel and the construction of the ‘triple identity’ test. Yet the normal tools used to manage divergence in potentially applicable laws – choice of law and codification – have failed to work when it comes to the res judicata effect of awards. I argue the answer is to adopt a transnational ap

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Leventhal, Alexander G. "Threading the Sovereign’s Needle." Brill Research Perspectives in International Investment Law and Arbitration 3, no. 4 (June 28, 2021): 1–59. http://dx.doi.org/10.1163/24055778-12340010.

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Abstract An investor-State tribunal enjoys significant authority once a dispute is referred to it. Among a tribunal’s unquestioned powers is the power to order interim relief—including with respect to the most sovereign of a State’s conduct: its enforcement of its criminal law. In exercising these powers, an investor-State tribunal goes beyond the role traditionally assigned to it—i.e. to award damages for prejudice caused by a treaty breach—and dictates sovereign conduct. While the applicable treaty, arbitral rules, or law of the seat may not offer specific instructions, arbitral tribunals de

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Lando, Massimo, and Nilüfer Oral. "Jurisdictional Challenges and Institutional Novelties – Procedural Developments in Law of the Sea Dispute Settlement in 2020." Law & Practice of International Courts and Tribunals 20, no. 1 (March 29, 2021): 191–221. http://dx.doi.org/10.1163/15718034-12341444.

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Abstract In 2020, law of the sea tribunals rendered one decision on jurisdiction and decided one case on the merits. First, the arbitral tribunal in the Azov Sea and Kerch Strait dispute dismissed the jurisdictional objections raised by the Russian Federation and thus will proceed to hear the merits of Ukraine’s claims. Second, the arbitral tribunal in the Enrica Lexie Incident case found, after upholding its jurisdiction in relation to the dispute before it, that the Italian marines who had shot an Indian fisherman in India’s Exclusive Economic Zone were entitled to immunity under internation

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Awuni, Peter Apuko, and Nana Ama Agyapong. "An Analysis of Judicial Intervention and Assistance for Arbitral Proceedings: A Look at the Courts of Ghana." International Journal of Current Research in the Humanities 27, no. 1 (April 30, 2024): 1–25. http://dx.doi.org/10.4314/ijcrh.v27i1.1.

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Without the support of national courts, arbitral tribunals are unable to function properly, particularly in situations involving the enforcement of arbitration agreements, procedural orders, and arbitral awards, among other things. The arbitral tribunal cannot compel a party to carry out a task, or obligation, or fulfil an obligation. The court has the authority to order a party to carry out an order and can also impose harsh consequences for contempt of court, such as fines, imprisonment, or other punishments. Unless the issue(s) before the court are non-arbitrable pursuant to section 1 of th

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Bulovsky, Andrew. "Promises Unfulfilled: How Investment Arbitration Tribunals Mishandle Corruption Claims and Undermine International Development." Michigan Law Review, no. 118.1 (2019): 117–47. http://dx.doi.org/10.36644/mlr.118.1.promises.

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In recent years, the investment-arbitration and anti-corruption regimes have been in tension. Investment tribunals have jurisdiction to arbitrate disputes between investors and host states under international treaties that provide substantive protections for private investments. But these tribunals will typically decline to exercise jurisdiction over a dispute if the host state asserts that corruption tainted the investment. When tribunals close their doors to ag-grieved investors, tribunals increase the risks for investors and thus raise the cost of international investment. At the same time,

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Rachkov, Ilia V. "Concept of “Legitimate Expectationsˮ of Foreign Investors in the International Investment Arbitration Practice". Moscow Journal of International Law, № 1 (30 березня 2014): 196–220. http://dx.doi.org/10.24833/0869-0049-2014-1-196-220.

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Based on the practice of international investment arbitral tribunals this article outlines the notion of “legitimate expectations of investors”. This notion is not used in bi- is not used in biand multilateral international investment treaties of Russia. However, as follows from the practice of international investment arbitral tribunals, legitimate expectations of investors constitute an integral part of the standard of fair and equitable treatment of foreign investor by the state hosting foreign investments. Only if a state gives specific representations and warranties to the investor, this

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McMULLAN, SAM. "Holding Counsel to Account in International Arbitration." Leiden Journal of International Law 24, no. 2 (May 6, 2011): 491–512. http://dx.doi.org/10.1017/s0922156511000112.

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AbstractCounsel are regulated the world over in their dealings with a court of law through the enforcement of ethical duties that are owed by them. With the increased prevalence of arbitration in resolving disputes internationally, the question then arises: how are counsel kept in check when appearing before an arbitral tribunal? The issues involved are magnified when one considers the question in the context of international arbitral tribunals. This paper considers these issues by analysing them in three parts. First, is ethical regulation necessary in international arbitration? Second, does

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Oellers-Frahm, Karin. "Lawmaking Through Advisory Opinions?" German Law Journal 12, no. 5 (May 1, 2011): 1033–56. http://dx.doi.org/10.1017/s2071832200017211.

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International courts and tribunals are firstly and particularly conceived to settle legal disputes between States and/or other organs or individuals admitted as parties according to the statute of the respective court by means of a binding decision. An advisory function is not inherent in the function of a judicial body, but has to be transferred expressly upon a court or tribunal in the constituent instrument. For non-standing judicial bodies, i.e., arbitral tribunals, an advisory function is rather unusual, but not altogether ruled out: The parties to acompromismay empower the tribunal to gi

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de Herdt, Sandrine. "Admissibility of Counterclaims: The Practice of UNCLOS Tribunals." Journal of International Dispute Settlement 13, no. 1 (February 3, 2022): 79–97. http://dx.doi.org/10.1093/jnlids/idac002.

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Abstract This article considers the admissibility and procedural aspects relating to the filing of counterclaims in international law, with particular reference to bodies exercising jurisdiction under the United Nations Convention on the Law of the Sea —namely the International Court of Justice, International Tribunal for the Law of the Sea and Arbitral Tribunal instituted under Annex VII to this Convention. Counterclaims in the context of UNCLOS tribunals raise specific questions. For instance, the ambiguity concerning the rules applicable to counterclaims presented in Annex VII proceedings h

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CHANG, YEN-CHIANG. "How Does the Amicus Curiae Submission Affect a Tribunal Decision?" Leiden Journal of International Law 30, no. 3 (April 24, 2017): 647–60. http://dx.doi.org/10.1017/s0922156517000231.

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AbstractIn the South China Sea Arbitration initiated by the Philippines against China, the Chinese (Taiwan) Society of International Law (CSIL) submitted an amicus curiae brief to the Annex VII arbitral tribunal established in accordance with United Nations Convention on the Law of the Sea (UNCLOS). This article first analyzes the definition and legal nature of amicus curiae status, then introduces cases involving amicus curiae in the International Court of Justice (ICJ) and UNCLOS dispute settlement mechanisms. By analyzing relevant statutes and rules of procedure, this article assesses the a

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Monebhurrun, Nitish. "Gold Reserve Inc. v. Bolivarian Republic of Venezuela: Enshrining Legitimate Expectations as a General Principle of International Law?" Journal of International Arbitration 32, Issue 5 (October 1, 2015): 551–61. http://dx.doi.org/10.54648/joia2015026.

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In recent years, arbitral tribunals have frequently referred to the concept of legitimate expectations when analyzing a state’s obligation to provide fair and equitable treatment. Indeed, an investor’s legitimate expectations have become so central to the fair and equitable treatment obligation that the latter is now rarely invoked without reference to the former. Notwithstanding the increasing importance of this concept, however, the legal nature of legitimate expectations is still unclear. A minority of arbitral tribunals have categorized legitimate expectations as a general principle of int

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Sentani, Rachel Georghea, and Mathijs Ten Wolde. "The Legal Policy of Executability in the International Arbitral Tribunal Decision for Settlement of Investment Disputes." BESTUUR 9, no. 2 (November 24, 2021): 144. http://dx.doi.org/10.20961/bestuur.v9i2.54451.

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<div><table cellspacing="0" cellpadding="0" align="left"><tbody><tr><td align="left" valign="top"><p class="AbstractText">The growing number of investment disputes indicates more challenging and controversial matters in the various arbitration practices. However, the International Centre for the Settlement of Investment Disputes (ICSID) rules do not entirely solve the problem in the arbitration process. This study aims to explain how the ICSID tribunal’s inherent reconsideration power can be exercised to “fill the gap” in arbitration proceedings. This study

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Bradshaw, Robert. "How to Obtain Evidence from Third Parties: A Comparative View." Journal of International Arbitration 36, Issue 5 (September 1, 2019): 629–58. http://dx.doi.org/10.54648/joia2019031.

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Obtaining evidence from third parties poses a unique problem in international arbitration. Unlike litigation, the consensual and private nature of arbitration means that tribunals lack the authority to compel third-party disclosure given to many State courts. Yet even if they are not subject to the tribunal’s jurisdiction, third parties to the proceedings may still possess valuable evidence. This article considers the practical options for obtaining evidence from third parties, whether through requests by the arbitral tribunal itself or judicial assistance from State courts. In the latter case

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Gan, Kexin. "Jurisprudential Analysis of Precedents Invoked in International Investment Arbitration." Law and Economy 2, no. 8 (August 2023): 49–58. http://dx.doi.org/10.56397/le.2023.08.06.

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With the increase of international investment arbitration cases and the development of arbitration practice, it is more common for arbitral tribunals to invoke precedents to explain the meaning of clauses and make judgments. However, many problems need to be solved in the process of invoking precedents. This paper starts from the jurisprudential analysis of invoking precedent in investment arbitration, analyzes the reasons why it is difficult for the arbitral tribunal to set aside it in practice on the basis of distinguishing the nature of invoking precedent, and then points out the doubts abo

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Bortolotti, F. "The UNIDROIT Principles and the arbitral tribunals." Uniform Law Review - Revue de droit uniforme 5, no. 1 (January 1, 2000): 141–52. http://dx.doi.org/10.1093/ulr/5.1.141.

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Li, Xinze. "Role of International Arbitration in Resolving International Disputes and Analysis of Examples." Lecture Notes in Education Psychology and Public Media 44, no. 1 (April 18, 2024): 90–96. http://dx.doi.org/10.54254/2753-7048/44/20230085.

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The international community often uses international arbitration to resolve international disputes, and in arbitration, the parties often challenge the jurisdiction of the arbitration. This paper first discusses the three characteristics of international arbitration and four main types of international arbitration public organizations and then addresses the issues associated with the jurisdiction of international arbitration. In this part, it includes the definition as well as the scope of jurisdiction, and the factors considered in establishing it are mentioned, also the current problems of j

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Groselj, Luka. "Stay of arbitration proceedings Some examples from arbitral practice." ASA Bulletin 36, Issue 3 (September 1, 2018): 560–77. http://dx.doi.org/10.54648/asab2018054.

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This article outlines a number of situations, illustrated by practical and thus far unpublished cases, in which parties requested arbitral tribunals to decide on a stay of the arbitration proceedings. The most frequently invoked reason that would justify a stay is the existence of on-going parallel proceedings. A number of other circumstances can also lead the parties to apply for a stay, e.g., pending payment of security for costs or clarification of the opposing party’s representation. As the reviewed cases demonstrate, arbitral tribunals have no legal obligation to grant a stay and exercise

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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 relev

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Ryan, Margaret Clare. "Glamis Gold, Ltd. v. The United States and the Fair and Equitable Treatment Standard." McGill Law Journal 56, no. 4 (September 13, 2011): 919–58. http://dx.doi.org/10.7202/1005849ar.

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This article critiques the arbitral tribunal’s decision in Glamis Gold, Ltd. v. The United States of America on the basis of its interpretation of the fair and equitable treatment standard (FET) owed by state parties to foreign investors under NAFTA article 1105. Part I outlines the post-WWII development of the FET standard in relation to the restrictive, customary international law of minimum standard of treatment (MST). The author traces the expansive treatment of the FET standard by tribunals in both bilateral investment treaty and NAFTA disputes. Despite a binding Free Trade Commission Not

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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 an

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Caron, David D. "The ILC Articles on State Responsibility: The Paradoxical Relationship Between Form and Authority." American Journal of International Law 96, no. 4 (October 2002): 857–73. http://dx.doi.org/10.2307/3070682.

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The adoption by the International Law Commission (ILC) in 2001 of its articles on state responsibility is an achievement that presents a paradox. This essay is about the form and authority of the articles, and the paradox that they could have more influence as an ILC text than as a multilateral treaty. The essay addresses the questions of the appropriate authority to be given an ILC text, why undue influence may be attributed to an ILC text (particularly by arbitral tribunals), and how an arbitral tribunal should approach interpreting and applying the articles on state responsibility.

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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 Canad

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Mirzayev, Ruslan. "International Investment Protection Regime and Criminal Investigations." Journal of International Arbitration 29, Issue 1 (February 1, 2012): 71–105. http://dx.doi.org/10.54648/joia2012004.

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Over the past few years there have been many allegations that states abuse their police powers to escape their international obligations before foreign investors. In particular, it has been alleged that states initiate criminal proceedings in order to escape payment of compensation for expropriation, hamper arbitral hearings or punish foreign investors. This article attempts to find a solution to the problem of the abuse of police powers. Such a study is important, because the abuse of police powers can damage the whole international framework for protecting foreign investments. The findings f

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Tamada, Dai. "Applicability of the Excess of Power Doctrine to the ICJ and Arbitral Tribunals." Law & Practice of International Courts and Tribunals 17, no. 1 (June 27, 2018): 251–70. http://dx.doi.org/10.1163/15718034-12341379.

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Abstract The problem with regard to the excess of power doctrine, one of the most controversial issues in the procedure of international courts and tribunals, was invoked in certain recent cases, such as the Bosnian Genocide case and the South China Sea case. To solve this problem, it is necessary to examine two relevant legal notions: the principle of competence-competence; and the principle of res judicata. First, the principle of competence-competence has been regarded as a relative power of arbitral tribunals in the sense that it is limited by the application of the rules of treaty interpr

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Titi, Catharine. "Are Investment Tribunals Adjudicating Political Disputes?" Journal of International Arbitration 32, Issue 3 (May 1, 2015): 261–88. http://dx.doi.org/10.54648/joia2015011.

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Conceived from its inception as a tool for the depoliticization of disputes involving a foreign investor and a sovereign state, Investor-State Dispute Settlement (ISDS) has emerged as a popular alternative to state justice and diplomatic protection and it has evolved into the centrepiece and guarantor of the international system of investment protections. And yet, despite the common perception of its neutrality as a forum for the non-political resolution of disputes, the scope of subject matters that fall within the purview of arbitral control and the utilization of political means by states a

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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 internation

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Tarawneh, Mosleh, Jalal Alqhaiwi, and Firas Al Malahmeh. "Consent Awards and the Supervisory Role of Judiciary: Analytical Comparative Study." Jordanian Journal of Law and Political Science 14, no. 1 (March 30, 2022): 187–257. http://dx.doi.org/10.35682/jjlps.v14i1.339.

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This study examines the consent arbitral awards and the possiblity of applying to them the same conditions, rules and effects of ordinary arbitral awards. The study is divided into two main sections: Section one analyzes the legal framework of consent arbitral awards; their definition, purpose and the powers of arbitral tribunals to issue them as being originated from the parties’ consent. This is important in the light of some illegal practices of some disputants who may utilize such awards to cover such practices. The second section deals with the judicial review of consent awards either thr

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Honlet, Jean-Christophe. "The IBA Guidelines on Party Representation in International Arbitration." Journal of International Arbitration 30, Issue 6 (December 1, 2013): 701–9. http://dx.doi.org/10.54648/joia2013044.

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The IBA Guidelines on Party Representation in International Arbitration address a variety of issues of principle and practice regarding the conduct of Party representatives in international arbitration. Rather than constituting a code of ethics, they attempt to promote certain 'international best practices' regarding such questions as ex parte communications, submissions to the arbitral tribunal, document production, witnesses and experts, without prejudice to the application of mandatory rules that may locally apply to Party representatives. A specific section of the Guidelines is devoted to

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Reinisch, August, and Christina Knahr. "Transparency versus Confidentiality in International Investment Arbitration – The Biwater Gauff Compromise." Law & Practice of International Courts and Tribunals 6, no. 1 (2007): 97–118. http://dx.doi.org/10.1163/156918507x193131.

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AbstractRecent years have seen a trend towards increasing transparency in international investment arbitration. This trend has been reflected in arbitral practice and in the amendments to the ICSID Arbitration Rules in 2006, which now expressly allow for participation of non-disputing parties as amicus curiae. Still more problematic, however, is the publication of arbitral documents, which has recently been controversial in Biwater Gauff v. Tanzania. This paper will discuss the core provisions on the publication of documents of the UNCITRAL Arbitration Rules, the ICSID Arbitration Rules and NA

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Göksu, Tarkan. "Schiedsgerichtlicher Instanzenzug Welches Verfahren bei Rechtsmitteln an ein Oberschiedsgericht?" ASA Bulletin 34, Issue 3 (August 1, 2016): 606–28. http://dx.doi.org/10.54648/asab2016051.

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An appeal to another arbitral body within an arbitration proceeding is unusual and, relative to the number of arbitration disputes, exceptional. This phenomenon is therefore barely regulated by law, rarely considered by arbitration rules and only ever mentioned incidentally at most by scholars. As a result, the most important questions relating to internal appeals, as far as they can be identified, remain largely unanswered. It seems that two legal issues present themselves: (1) which rules govern the arbitral appeal proceedings in the absence of any agreement on this, for example, as regards

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RANJAN, Prabhash. "Police Powers, Indirect Expropriation in International Investment Law, and Article 31(3)(c) of the VCLT: A Critique of Philip Morris v. Uruguay." Asian Journal of International Law 9, no. 1 (September 11, 2018): 98–124. http://dx.doi.org/10.1017/s2044251318000139.

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AbstractGiven the global contestation against BITs and ISDS, the outcome of thePhilip Morrisv.Uruguaycase upholding Uruguay’s right to regulate for public health is important for the international investment law community. However, it is not just the outcome of a case but also the quality of legal reasoning that is significant in building the legitimacy of the ISDS system. This paper focuses on the reasoning adopted by the tribunal in deciding whether Uruguay’s regulatory measures resulted in the expropriation of Philip Morris’s investment. The paper critiques the tribunal’s use of Article 31(

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Andreeva, Yulia. "The Tribunal in Malaysian Historical Salvors v. Malaysia Adopts a Restrictive Interpretation of the Term “Investment”." Journal of International Arbitration 25, Issue 4 (August 1, 2008): 503–6. http://dx.doi.org/10.54648/joia2008037.

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The absence of a definition of “investment” in the ICSID Convention has led several arbitral tribunals to develop a narrow reading of this term. The most recent notable example of such conservative interpretation is a decision of the ICSID tribunal in Malaysian Historical Salvors (MHS) v. Malaysia. In that case, the tribunal decided that MHS’s contract with Malaysia to undertake complex salvage operations did not rise to the level of an investment because, among other things, the contract did not significantly contribute to Malaysia’s economic development. MHS’s four years of work also failed

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