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Dissertations / Theses on the topic 'Arbitration and award Arbitration and award Schweden'
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1
Stolle, Roland. "Das Recht der nationalen Schiedsgerichtsbarkeit in Schweden und Deutschland im Vergleich /." Hamburg : Kovač, 2004. http://www.gbv.de/dms/spk/sbb/recht/toc/387734163.pdf.
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Ip, Winnie Wing Yee. "Is arbitration confidential? : a party's perspective." access abstract and table of contents access full-text, 2005. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b20833635a.pdf.
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3
Yuen, Mei Yee. "The effect of the agreement between mainland China and the Hong Kong SAR on mutual enforcement of arbitral awards." access abstract and table of contents access full-text, 2005. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b20835929a.pdf.
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Thesis (M.A.)--City University of Hong Kong, 2005.Title from title screen (viewed on 27 Mar. 2006) "A dissertation presented to School of Law, Master of arts in arbitration and dispute resolution." Includes bibliographical references.
4
Fung, Eric Kang Cheung. "A comparison of the arbitration system between Hong Kong and China." access abstract and table of contents access full-text, 2005. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b20833350a.pdf.
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Thesis (M.A.)--City University of Hong Kong, 2005.Title from title screen (viewed on Mar. 27, 2006) "A dissertation submitted to the School of Law, City University of Hong Kong in partial fulfillment of the requirement for the degree of Master of arts in arbitration and dispute resolution." Includes bibliographical references.
5
Lo, Malad Siu Ming. "How user friendly are the laws for international commercial arbitration : a comparison between Singapore and Hong Kong." access abstract and table of contents access full-text, 2005. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b20833830a.pdf.
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Gu, Weixia. "The regulation of arbitration agreements in China practical constraints and prospective reforms for Chinese arbitration /." Click to view the E-thesis via HKUTO, 2008. http://sunzi.lib.hku.hk/hkuto/record/B41508889.
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Gu, Weixia, and 顧維遐. "The regulation of arbitration agreements in China: practical constraints and prospective reforms forChinese arbitration." Thesis, The University of Hong Kong (Pokfulam, Hong Kong), 2008. http://hub.hku.hk/bib/B41508889.
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Decoux, Amandine. "The arbitration agreement and the reality of international trade : how much form do we need?" Thesis, McGill University, 2005. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=99134.
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The practice of international trade is specific and evolves rapidly in accordance with its needs. Today arbitration constitutes the usual way to settle disputes of international commerce. However, certain rules of arbitration do not seem to be adapted with this practice. The written form of the arbitration agreement as required by, inter alia, the New York Convention and the UNCITRAL Model Law on International Commercial Arbitration is one of them. First this thesis presents the rules of these two instruments. Then international trade's practice is examined, and especially the incorporation of arbitration clauses by reference and the use of electronic means to conclude such clauses. There is a noteworthy discrepancy between the rules and reality of trade.Having exposed the various difficulties, this thesis examines national laws and case law in order to determine whether they offer satisfactory solutions. Different interesting answers have been brought in Civil Law as well as Common Law countries. Yet they remain local and do not allow for harmonization worldwide. They even often vary one from another and are sometimes contradictory.
A more satisfactory solution could be found on the international level, and more specifically by the UNCITRAL. Indeed the Commission entrusted the Working Group II the mission of proposing a solution. A proposal of compromise has been drafted, namely, a revised article of the Model Law and an interpretative instrument of the New York Convention. This soft proposal is interesting but will perhaps not be able to settle all the problems related to the issue of the arbitration clause's form.
9
Ho, Kam Hung. "The enforceability of foreign related arbitral awards in China." access abstract and table of contents access full-text, 2005. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b20833611a.pdf.
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Lee, Rainbow Lai Yee. "What are the comparisons of international litigation and arbitration in mainland China." access abstract and table of contents access full-text, 2006. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b21324268a.pdf.
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Thesis (M.A.)--City University of Hong Kong, 2006."A dissertation paper undertaken in partial fulfillment of the Master of arts in arbitration and dispute resolution." Title from title screen (viewed on Sept. 20, 2006) Includes bibliographical references.
11
Dūrī, Qaḥṭān ʻAbd al-Raḥmān. "ʻAqd al-taḥkīm fī al-fiqh al-Islāmī wa-al-qānūn al-waḍʻī." [Baghdad] : al-Jumhūrīyah al-ʻIrāqīyah, Wizārat al-Awqāf wa-al-Shuʼūn al-Dīnīyah, 1985. http://books.google.com/books?id=meGPAAAAMAAJ.
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Thesis (doctoral)--Jāmiʻat al-Qāhirah.Summary in English. Title on added t.p.: The bond of arbitration in Islamic jurisprudence & positive law. Includes bibliographical references (p. 673-786) and index.
12
Lam, Chi Fung. "The future development of Hong Kong arbitration law." access abstract and table of contents access full-text, 2006. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b21844239a.pdf.
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Thesis (M.A.)--City University of Hong Kong, 2006."Master of Arts in arbitration and dispute resolution, Semester A, 2006-2007, LW6409-dissertation." Title from PDF t.p. (viewed on May 22, 2007) Includes bibliographical references.
13
Yuen, Wai Ho Eric. "Practicability of widening arbitration application in Hong Kong." access abstract and table of contents access full-text, 2009. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b29151259a.pdf.
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Thesis (M.A.)--City University of Hong Kong, 2009."A dissertation submitted in partial fulfillment of the requirements for the degree of Master of Arts in arbitration and dispute resolution." Title from PDF t.p. (viewed on March 26, 2010) Includes bibliographical references.
14
Chan, Wai-kwok Justus. "Is arbitration the most suitable means for solving disputes in the construction industry? dispute resolution model before arbitration /." access abstract and table of contents access full-text, 2006. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b21843065a.pdf.
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Thesis (M.A.)--City University of Hong Kong, 2006."Dissertation for the degree of Master of Arts in arbitration and dispute resolution (MAArbDR) submitted to School of Law, City University of Hong Kong" Title from PDF t.p. (viewed on May 22, 2007) Includes bibliographical references.
15
Tarawneh, Musleh Ahmad Musa. "Recognition and enforcement of foreign arbitration agreements under the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards of 1958." Thesis, Available from the University of Aberdeen Library and Historic Collections Digital Resources, 1998. http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?application=DIGITOOL-3&owner=resourcediscovery&custom_att_2=simple_viewer&pid=59754.
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Castillo, Freyre Mario. "Arbitration after the arbitration." IUS ET VERITAS, 2017. http://repositorio.pucp.edu.pe/index/handle/123456789/123158.
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In this article, the author analyzes the proceedings after the conclusion of the arbitration, in accordance with current regulations. Thus, it develops the possibilities that can be presented before the arbitral award can be firm and, the possibilities that exist after that.En el presente artículo, el autor analiza las actuaciones posteriores a la conclusión del arbitraje, de acuerdo con la normativa vigente. Así, desarrolla las posibilidades que pueden presentarse antes de que el laudo pueda ser considerado firme y las posibilidades que existen posteriores a ello.
17
Chan, Stella Ching Han. "Enforcement of arbitral awards in Hong Kong." access abstract and table of contents access full-text, 2005. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b2083326xa.pdf.
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Thesis (M.A.)--City University of Hong Kong, 2005."Master of arts in arbitration and dispute resolution, dissertation." Title from title screen (viewed on Mar. 27, 2006) Includes bibliographical references.
18
Yan, Kwok Wing. "Should Hong Kong adopt a unitary regime of arbitration law based on the UNCITRAL Model Law a critical evaluation of the draft Arbitration Bill (December 2007) /." access abstract and table of contents access full-text, 2008. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b22730229a.pdf.
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Thesis (M.A.)--City University of Hong Kong, 2008.Title from PDF t.p. (viewed on Oct. 3, 2008) "A dissertation submitted in partial fulfillment of the requirements for the degree of Master of Arts in arbitration and dispute resolution." Includes bibliographical references (p. 78-82)
19
Yik, Chung Pang. "Critical assessment of arbitral procedures reform in China." access abstract and table of contents access full-text, 2008. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b2345426Xa.pdf.
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Thesis (M.A.)--City University of Hong Kong, 2008."Master of Arts in arbitration and dispute resolution (MAArbDR), LW6409 dissertation." Title from PDF t.p. (viewed on June 1, 2009) Includes bibliographical references.
20
To, Elaine. "Arbitration in construction industry : a Hong Kong perspective /." Hong Kong : University of Hong Kong, 2002. http://sunzi.lib.hku.hk/hkuto/record.jsp?B25939403.
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Baddack, Frank. "Lex Mercatoria: scope and application of the law merchant in arbitration." Thesis, University of the Western Cape, 2005. http://etd.uwc.ac.za/index.php?module=etd&.
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Arbitration is the preferred method of dispute resolution in international trade. Naturally, a set of rules is necessary to govern the conflict&rsquos resolution. For cultural, political, economical or other reasons the parties&rsquo
national laws may not serve the individual interests and needs of that particular contract well. If one wants to avoid the application of both parties&rsquo
national laws, one can choose that the contract be governed by an a-national legal standard, e.g. general principles of International Trade Law or the general usages of a particular trade. These internationally accepted principles of law governing contractual relations are called lex mercatoria (law merchant).
Lex mercatoria already existed in the Middle Ages and can even be dated back to antiquity. Later it disappeared through the nationalization of International Trade Law and was rediscovered in the 1950s, when international traders were again creating their own law and disputes were increasingly resolved outside of the national jurisdictions and applying a-national law. Lex mercatoria is being applied more and more by arbitrators and is therefore becoming increasingly important for dispute resolution in International Trade. Numerous different concepts and theories of lex mercatoria have been developed. Its being an autonomous legal system is questioned by some authors and the doctrine in favour of it called unfounded. The critics also argue that the authority to apply lex mercatoria may be a recipe for amateurism and the substitution of the arbitrator&rsquo
s private preferences for the parties&rsquo
intentions, for itis easy to proclaim common principles on the basis of limited knowledge. The lex mercatoria is said only to exist because scholars talk about it. However, these and other allegations can be refuted by critically analyzing the arguments that are supposed to underline those assumptions. Applying lex mercatoria to solve international trade disputes has many advantages. By choosing lex mercatoria the parties avoid rules which are unfit for international contracts, e.g. peculiar formalities, brief cut-off periods and special difficulties created by domestic laws. In addition to that, neither of the parties has the advantage of having the dispute governed by his own law. Since one of the central rules is the principle of good faith and fair dealing, lex mercatoria neither leads to arbitrary results nor does it favour the rich. Is it possible for the arbitrators to apply lex mercatoria if no law has been chosen by the parties? The failure of the parties to indicate a choice could well mean that they did not wish to have their contract governed by any of their national laws. In some awards arbitrators applied lex mercatoria as they considered the community of international merchants to be autonomous and to exist beyond national legislation. However, it cannot be deduced from the absence of such a choice that the parties have impliedly chosen lex mercatoria to be the law governing the conflict. Lex mercatoria is applicable only as a subsidiary law in cases where no national law has been chosen and seems apt.
22
Wong, Kai Ming. "Stay for arbitration in construction disputes." access abstract and table of contents access full-text, 2007. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b22052203a.pdf.
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Thesis (M.A.)--City University of Hong Kong, 2007.Title from PDF t.p. (viewed on Sept. 7, 2007) "Master of Arts in arbitration and dispute resolution 2006/2007, LW6409A research project" Includes bibliographical references.
23
Lam, Lok Fu Ralph. "Arbitration and the Hong Kong design and build contract." access abstract and table of contents access full-text, 2005. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b21847642a.pdf.
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Thesis (M.A.)--City University of Hong Kong, 2005."Master of Arts in arbitration and dispute resolution, LW 6409 dissertation" Title from PDF t.p. (viewed on May 23, 2007) Includes bibliographical references.
24
Chirichiello, Michela. "Confidentiality and public interest in mixed international arbitration." Thesis, McGill University, 2003. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=19633.
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Confidentiality is unanimously recognized to be one of the most characteristic and attractive features of international commercial arbitration. The confidential character of arbitral proceedings has often been presumed on the basis of the privacy of the hearings, but this presumption has proven ill-founded in arbitrations between private and public actors ("mixed arbitration"). National courts and international tribunals have come to recognize and to enforce a public interest exception to confidentiality based on the principle that the public has a right to be informed of the contents and outcome of the arbitral proceedings whenever the subject-matter of the dispute is of public concern. This thesis will assess the basis upon which and the limits within which the public interest exception to confidentiality might operate. The thesis will then provide an analysis of the benefits—the accommodation of moral and legal expectations of public participation—and risks—the politicization of the arbitrated dispute and disclosure of trade secrets—of greater transparency and openness in mixed arbitral proceedings. The thesis will show that the public interest exception to confidentiality is a valuable and important development along the path of democratic governance, but also that, in order to avoid the indiscriminate disclosure of information, the precise range of its application needs to be carefully defined and limited to only those cases wherein it appears to be fully justified.
25
Abulaban, Albara A. "The Saudi Arabian Arbitration Regulations : a comparative study with the English Act of 1996 and the Arbitration Scotland Act of 2010." Thesis, University of Stirling, 2015. http://hdl.handle.net/1893/22938.
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Today we live in a world where international trade accounts for a significant proportion of the daily trade for an enormous number of companies and institutions. The number of international commercial deals that are made every day is countless. The sheer scale of international trade invariably results in an increase in the number of disputes between international partners. However, where there are problems, methods to resolve the disagreements will invariably appear. One of the main and mostly preferred methods is arbitration. Arbitration is preferred for it is convenient and cost-effective method to resolve disputes between business partners. Saudi Arabia has recently reformed its Arbitration Regulations through the implementation of new regulations in 2012. This replaces previous regulations dating from 1983 and the implementation rules of 1985. This thesis examines, analyses and criticises these regulations and compare them to the English and the Scottish arbitration laws. Throughout this study, the old Saudi regulations and implementation rules are examined in order to determine how the rule of arbitration worked in the country. Following this, the new regulations are presented to see what has changed and if there has been any improvement. This is subsequently followed by a discussion on the scale of the improvement and whether further improvements are required in Saudi Arabia. This thesis will also carry out a comparison with the English Act of 1996 and the Arbitration Scotland Act of 2010. The conclusion address and highlight the main differences between the regulations, when present and highlights what the Saudi legislator can benefit from the laws under consideration. One of the main aims of this study was to find if the Saudi Arbitration Regulations have improved and addressed the issues that concerned researchers and commentators in the past. The research finds that there are significant improvements in the Saudi regulations.
26
Biukovic, Ljiljana. "Court intervention in arbitral proceedings in countries adopting the UNCITRAL Model Law on International Commercial Arbitration, an impact of legal culture on reception : case studies of Canada, Hong Kong and Russia." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 2000. http://www.collectionscanada.ca/obj/s4/f2/dsk2/ftp02/NQ48607.pdf.
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27
Duquenne, Céline. "L'autonomie de la clause compromissoire en droit du commerce international." Thesis, McGill University, 2000. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=31157.
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The arbitration clause is the clause by which the parties to a contract agree to submit the conflicts that may rise from their contractual relationship to an arbitral tribunal. A principle of autonomy is associated to this type of clause: on the one hand, the arbitration clause is separable from the main contract; on the other hand, it is independent from any state law. To a certain extent, one may even link this principle to other principles concerning the arbitration clause, such as the Kompetenz-Kompetenz principle. The question is to know whether special rules apply to the arbitration clause.
28
Chang, Mann-Long. "Harmonisation of procedural law in international commercial arbitration." Thesis, University of Stirling, 2009. http://hdl.handle.net/1893/9931.
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The principle of party autonomy is widely accepted in the practice of international commercial arbitration. However, it still encounters certain limitations in its applications, especially for the fact that the demands of natural justice and the public good cannot be neglected by the parties. The various states in the international system have and operate peculiar systems of mandatory rules and public policies, which tend to impart significantly on the arbitral procedure, thereby creating a situation of discordance of outcomes of arbitration in different countries. For this reason, this writer intends to examine ways by which the various procedural laws can actually be harmonised. This thesis shall therefore focus on the discordances and confusion that often arise in the interacion of the various laws that may be applicable to the arbitral process in International commercial arbitration, as well as ways of achieving a harmonisation of these laws.
29
Fung, Patrick Chi Keung. "An examination of the arbitral immunity." access abstract and table of contents access full-text, 2005. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b20833325a.pdf.
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Fei, Lanfang, and 费兰芳. "Judicial review of arbitral awards in China: the need for reform." Thesis, The University of Hong Kong (Pokfulam, Hong Kong), 2012. http://hub.hku.hk/bib/B50533976.
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The subject of this thesis is the judicial review of arbitral awards in China. Chinese arbitration law provides a distinct set of rules for reviewing international and domestic awards, which is usually referred to as the dual-track system (“Shuang Gui Zhi”). First, the judicial review standard is dual-track because international awards are subject to procedural and limited review, whereas domestic awards are subject to substantial review. Second, the review procedure is also dual-track because a reporting mechanism under which the lower courts cannot deny an international award without confirmation by the Supreme People’s Court of China is applied to international awards but is not applied to domestic awards.
The following question arises: Should the dual-track judicial review system for arbitral awards be harmonised into a single system, and if so, how should it be accomplished. This question has sparked heated debates among scholars and practitioners. It is important because appropriate and efficient judicial review of awards is essential to the functioning and development of the arbitration system in China.
The research is based on the theory of path-dependent and institutional change. My consideration of the future of the dual-track system is centred on the wisdom of the original policy considerations behind the dual-track judicial review path, the solidity of the institutional foundations of the dual-track judicial review path and feedback on the dual-track system from judicial practice and the arbitration market. The research critically examined the policies and institutions behind the design of the dual-track judicial review and conducted an empirical study of the feedback of the design, which included a comprehensive review of various materials, cases and data relating to the subject.
The thesis concluded that the dual-track review path should be reformed by harmonising the dual-track review standard while maintaining and revising the dual-track procedure. The dual-track review standard should be uniform, and the limited scope of procedural review should be applied to both domestic and international awards. Policy and institutional foundations have failed in the substantial review of domestic awards due to the disruption in boundaries between international business and Chinese domestic business, as well as a weakened distinction between international and domestic arbitration commissions. The case study and the survey provide further empirical evidence that supports my argument, which revealed that the dual-track standard causes chaos and abuse of law in judicial practice and has gained negative feedback from arbitration market participants.
In contrast, the dual-track judicial review procedure should be maintained and revised. The study indicated that the reporting mechanism still acts as a positive force to control the outcome of reviews and secure proper and uniform application of the law. Despite its shortcomings, it still plays an important role in counteracting the negative effect of local protectionism and reinforces confidence of foreign investors in arbitration and within the legal infrastructure in China.
Based on the above findings, the author proposed a new regulatory framework designed to be sufficiently flexible and current for meeting the practical requirements of arbitration, while considering suitable interaction between arbitration bodies and courts. Specifically, the thesis suggested that the Arbitration Law should be revised as a unitary and exclusive legal framework for regulating judicial review of arbitral awards, and for incorporating the rules of enforcement of arbitral awards specified in the Civil Procedural Law. Although separate regimes for domestic and international arbitration should be maintained, the criteria for differentiating various types of arbitral awards should be clarified and redefined. Finally, the thesis made several concrete suggestions for improving specific provisions of the law that govern judicial review of arbitral awards.published_or_final_version
Law
Doctoral
Doctor of Philosophy
31
Anyichie, Chika Stella. "Recognition and enforcement of an arbitral award : a comparative analysis of England and Wales, Nigeria and United States of America." Thesis, University of Aberdeen, 2013. http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?pid=197759.
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The thesis advocates for recognition and enforcement of arbitral award, considering the requirements of and procedures for the recognition and enforcement of an arbitral award. International arbitration is the preferred mechanism for resolving oil and gas disputes due to its counted advantages over litigation. Most times, the party’s concern is on how the outcome of the arbitration proceeding is to be secured and the procedure to take. This thesis analyzes the legal frameworks for the recognition and enforcement of foreign arbitral awards in England and Wales, Nigeria and United States, laying emphasis on the approach to the implementation, similarities and dissimilarities that exist. In addition, it considers whether the procedure for enforcement reflects the objectives of achieving the effect of an award or if the procedure draws a balance with parties’ choice and restriction of parties’choice. That is to say, there are examples where the procedure for recognition and enforcement is binding without further consideration on the interest of the awardholder or the award-loser (this is analyzed on the aspect of Multi-door courthouse (MDC) system). Within this area of research, relevant international conventions on the recognition and enforcement of an arbitral award are considered, bearing in mind the central aim of this research: legal effect of an award and impact of the conventions in the England and Wales, Nigeria and United States legal systems. The Conventions discussed have guiding principles for recognition and enforcement of award and the countries used as case study have ratified these Convention. However, the thesis evaluates more closely on whether the national laws comply with best international practice standard especially as embodied in New York Convention 1958 (NYC). The NYC is praised as “utmost enactment”, and has been incorporated in the England, Nigeria and United States legal systems. The aim of NYC is the harmonization of the recognition and enforcement procedure among Contracting States, through stipulating for the procedure and grounds for refusal of enforcement of award under its articles III, IV and V. It is appropriate to examine the national courts reactions to these grounds and impact of the NYC standard grounds for refusal of arbitral award to the oil and gas disputes. This research considers whether the national laws used as case study comply with the NYC procedural standard. The thesis finds that the national laws are generally consistent with the NYC. Furthermore, the interpretation given by these legal systems are narrowly or broadly construed, which means consistency is at different levels. The thesis concludes that the effective and appropriate implementation of the recognition and enforcement of award by the judicial system and arbitrators will determine the extent of the law’s efficiency and achievement of the legal effect of an award. In addition, the Courts, parties and arbitrators are enjoined to pay utmost regard to the overriding concept of the law of the recognition and enforcement of an arbitral award.
32
Pauker, Saar. "Characterization problems in investment treaty arbitration." Thesis, University of Cambridge, 2011. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.609210.
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33
Siu, David Chi Ho. "Can confidentiality in Hong Kong arbitration proceedings be sufficiently protected?" access abstract and table of contents access full-text, 2005. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b20834251a.pdf.
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34
Huang, Ze Yu. "Pathological arbitration clauses in international commercial arbitration :law and practice in China." Thesis, University of Macau, 2016. http://umaclib3.umac.mo/record=b3570897.
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35
Jacyk, David William. "Arbitration in WTO disputes : the forgotten alternative." Thesis, University of British Columbia, 2007. http://hdl.handle.net/2429/32137.
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The creation of a binding adjudication system under the Dispute Settlement Understanding ("DSU") is one of the major successes of the WTO. However, while the Dispute Settlement Body ("DSB") has experienced a high level of compliance with its
rulings, there have been enough failures to raise concerns about compliance with WTO rulings. This in turn endangers the long term viability and legitimacy of the WTO as a decision-making body. This thesis explores the possibility of more effective integration of arbitration as a means of dealing with a small number of problematic cases where compliance with a ruling is doubtful. It considers arbitration as an alternative to what has
effectively become an institutionalized litigation system involving panels and the Appellate Body, and as an adjunct to the diplomatic resolution of disputes, particularly for policy driven cases where compliance with WTO rulings is more doubtful.
While proposals for the use of arbitration made during the Uruguay Round of negotiations leading to the creation o f the WTO have been realized in the provisions of the DSU, arbitration has never been effectively tested as a true alternative. Further, arbitration as an alternative to the litigation system has been almost entirely ignored in the context of the current debate over reform of the WTO dispute settlement system. After over a decade of WTO decision making, it is now an opportune point to consider meaningful institutional reform that more fully incorporates arbitration as an alternative form of dispute settlement at the WTO in politically difficult cases, and that builds on the existing but underused arbitration provision in Article 25 of the DSU. This thesis challenges the predominant bias towards the litigation system involving panels and the Appellate Body as a one-size-fits-all solution. It explores the potential role of arbitration, in the context of compliance theories, a historical review of the negotiations during the Uruguay Round, and an analysis of the shortcomings of the current DSU that contribute to the problems of non-compliance.Law, Peter A. Allard School of
Graduate
36
Afflerbach, Kai. "The quest for effective arbitration : new developments in South Africa and Germany." Thesis, Stellenbosch : Stellenbosch University, 2002. http://hdl.handle.net/10019.1/53153.
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Thesis (LLM)--Stellenbosch University, 2002ENGLISH ABSTRACT: Arbitration is widely regarded as an important alternative to litigation, particularly for international commercial disputes. However, concern currently exists that arbitration is becoming too slow and too expensive, partly through using procedures too similar to those in the courts. Effective arbitration requires suitable legislation, the support of the parties and their lawyers and appropriate initiatives from the arbitral tribunal. The UNCITRAL Model Law on International Commercial Arbitration of 1985 is the internationally accepted standard against which the quality of a nation's legislation for international commercial arbitration must be measured. A crucial aspect regarding suitable legislation is the role of the courts. This thesis is essentially concerned with steps which have been taken or need to be taken in Germany and South Africa to achieve effective arbitration. It commences with a brief overview of the sort of delaying tactics which are often encountered in international arbitration practice, including abuse of the court's powers of supervision and intervention. The reception in Germany and South Africa of the UNCITRAL Model Law is then discussed. In Germany it has been adopted for both domestic and international arbitration. The South African Law Commission has recommended its adoption in South Africa for international arbitration. The Law Commission has however recommended a new separate statute for domestic arbitration because of the perceived need for remedial measures to ensure improved arbitration procedures. The thesis then examines the effect of the court's powers on effective arbitration, particularly prior to the award. The current South African law is discussed as well as the changes proposed by the Law Commission in the context of domestic and international arbitration. The South African position is compared with that in Germany, both before and since the introduction of the UNCITRAL Model Law in 1998. After a general discussion of the powers of the court in the context of arbitration, two aspects are identified for special attention. The first is the power of the tribunal to rule on its own jurisdiction and the interaction between the powers of the court with those of the tribunal in this regard. The second concerns the granting of interim measures in the context of arbitration proceedings, with particular attention to security for costs. In certain circumstances, and depending on the applicable rules and legislation, it may be more appropriate for a party to seek such relief from the tribunal, whereas in slightly different circumstances it may be preferable to seek such relief from the court. Finally, steps are considered, which can usefully be taken by the arbitral tribunal itself to promote effective arbitration by using the flexibility of the process. The extent to which the tribunal is "master of its procedure" and thereby able to counter delaying tactics effectively is subject to the doctrine of party autonomy. Specific techniques for more effective arbitral procedures are suggested, namely a more interventionist approach, the use of preliminary meetings, imposing timetables, improving the hearing, the effective use of documentary evidence and discovery and finally the possibility of documents-only arbitration.
AFRIKAANSE OPSOMMING: Arbitrasie word wyd beskou as 'n belangrike alternatief tot litigasie, veral by internasionale handelsgeskille. Kommer bestaan egter tans dat arbitrasie te stadig en te duur word, gedeeltelik deur die gebruik van prosedures wat te veel met dié van die howe ooreenstem. Doeltreffende arbitrasie vereis geskikte wetgewing, die ondersteuning van die partye en hulle regsverteenwoordigers en toepaslike inisiatiewe deur die arbitrasietribunaal. Die "UNCITRAL Model Law on International Commercial Arbitration" van 1985 is die internasionaal aanvaarde standaard waarteen die gehalte van 'n land se wetgewing vir internasionale kommersiële arbitrasie gemeet moet word. 'n Kritieke oorweging by geskikte wetgewing is die rol van die howe. Hierdie tesis behandel die stappe wat in Duitsland en Suid-Afrika reeds geneem is of wat nog geneem moet word om doeltreffende arbitrasie te bewerkstellig. Dit begin met 'n kort oorsig oor die soort vertragingstaktiek wat dikwels in die internasionale arbitrasiepraktyk raakgeloop word, insluitende misbruik van die hof se bevoegdhede van toesighouding en inmenging. Die ontvangs van die "UNCITRAL Model Law" in Duitsland en Suid-Afrika word bespreek. Die wet is in Duitsland vir sowel binnelandse as internasionale arbitrasie ingevoer. Die Suid-Afrikaanse Regskommissie het sy invoering vir internasionale arbitrasie in Suid-Afrika aanbeveel. Die regskommissie het egter 'n nuwe afsonderlike wet vir binnelandse arbitrasie aanbeveel weens die gewaarde behoefte aan regstellende middele om verbeterde arbitrasieprosedures te verseker. Die tesis ondersoek daarna die uitwerking van die hof se bevoegdhede op doeltreffende arbitrasie, veral voor die arbitrasietoekenning. Die huidige Suid-Afrikaanse reg en die wysigings, wat deur die Regskommissie vir internasionale en binnelandse arbitrasie voorgestel word, word oorweeg. Die Suid-Afrikaanse posisie word met dié van Duitsland, voor en na die invoering van die "UNCITRAL Model Law" in 1998, vergelyk. Na 'n algemene bespreking van die hof se bevoegdhede in die samehang van arbitrasie word twee sake vir besondere aandag gekies. Die eerste is die bevoegdheid van die arbitrasietribunaal om oor sy eie jurisdiksie te beslis en die wisselwerking tussen die hof se bevoegdhede en dié van die arbitrasietribunaal in hierdie verband. Die tweede het betrekking op die toestaan van tussentydse regshulp in die samehang van arbitrasieverrigtinge, met besondere verwysing na sekuriteit vir koste. In besondere omstandighede, met inagneming van toepaslike reëls en wetgewing, behoort 'n party verkieslik sodanige regshulp by die arbitrasietribunaal aan te vra, terwyl in effens ander omstandighede behoort die partyeerder die hof te nader. Ten slotte word stappe oorweeg wat nuttig deur die arbitrasietribunaal self geneem kan word om doeltreffende arbitrasie aan te moedig deur die buigsaamheid van die arbitrasieproses te benut. Die mate waarin die tribunaal meester van sy prosedure is en daardeur vertragingstaktiek doeltreffend kan bekamp, is onderworpe aan die leerstuk van partyoutonomie. Bepaalde tegnieke word voorgestelom meer doeltreffende arbitrasieprosedures te bevorder, naamlik 'n meer intervensionistiese benadering, die gebruik van reëlingsvergaderings, die oplegging van 'n rooster vir die arbitrasie, verbetering van die verhoorproses, die doeltreffende gebruik van skriftelike getuienis en blootlegging en laastens die moontlikheid van arbitrasie slegs op dokumente.
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Man, Derek Mang Wo. "Court intervention in and judicial review of Hong Kong domestic arbitration awards." access abstract and table of contents access full-text, 2005. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b20834184a.pdf.
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Lynch, William Patrick. "Problems with court-annexed mandatory arbitration illustrations from the New Mexico experience /." abstract and full text PDF (UNR users only), 2001. http://0-gateway.proquest.com.innopac.library.unr.edu/openurl?url_ver=Z39.88-2004&rft_val_fmt=info:ofi/fmt:kev:mtx:dissertation&res_dat=xri:pqdiss&rft_dat=xri:pqdiss:1414422.
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Cheung, Sai Sing. "Comparing the arbitration power between Hong Kong International Arbitration Centre and the Estate Agents Authority." access abstract and table of contents access full-text, 2008. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b22724412a.pdf.
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Thesis (M.A.)--City University of Hong Kong, 2008.Title from PDF t.p. (viewed on Oct. 3, 2008) "Master of Arts in arbitration and dispute resolution" Includes bibliographical references (p. 106-107)
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Okpe, Felix Oghenekohwo. "Foreign direct investment and investment treaty arbitration with reference to Nigeria." Thesis, University of Aberdeen, 2014. http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?pid=225327.
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This research analyzes investment treaty arbitration under the International Center for Settlement of Investment Disputes (ICSID) in the context of Nigeria's international investment law regime. The ICSID Convention establishes ICSID. The arbitration of investment claims in the context of investment treaty arbitration under the ICSID should reflect the purpose of the ICSID Convention. The nature of foreign investment disputes is implicated in any act or omission by the host State tantamount to expropriation or violations of applicable investment agreements. This implication is one of the considerations for the protection of foreign investments in the host State through mechanisms that support the theory of the 'internationalization of State contracts' and the interpretation of 'umbrella clauses' found in most Bilateral Investment Treaties (BITs) applicable to the settlement of investment disputes. There are questions with respect to the feasibility of the classical theory of foreign direct investment (FDI) and the postulation of 'treaty protagonists' that the core adjudicative element of investment treaty arbitration ought to be 'contribution to economic development.' The thesis argues that, while the international mechanisms for the conduct of FDI are not yet perfect, the mechanisms offer some ideas and experience on how to reform Nigeria's investment treaty mechanism using 'the law in context approach' as a basis for reforms. The uncertainty associated with the ICSID Convention, with respect to the definition of 'investment' and established foreign investment treatment standards found in Nigeria's BITs regime, provides an opportunity for Nigeria to design a legal mechanism that would enhance its competitiveness in attracting FDI for economic development. A legal framework for investment treaty arbitration conducted under the ICSID is proposed to promote economic development and avoid the costs associated with investment treaty arbitration.
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Torgbor, Edward Nii Adja. "A comparative study of law and practice of arbitration in Kenya, Nigeria and Zimbabwe, with particular reference to current problems in Kenya." Thesis, Stellenbosch : Stellenbosch University, 2013. http://hdl.handle.net/10019.1/80182.
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Thesis (LLD)--Stellenbosch University, 2013.Bibliography
ENGLISH ABSTRACT: Arbitration as a mode of dispute settlement has been growing steadily all over the world. The momentum for commercial arbitration in particular was provided by the 1985 UNCITRAL Model Law on International Commercial Arbitration (“the Model Law”). Legislation based on the Model Law has been enacted in many countries. The arbitration laws of three of these countries, Kenya, Nigeria and Zimbabwe, are selected for consideration in this dissertation because of their common origins, similar statutes, similar problems, shared experiences, and their regional distribution. As the writer’s arbitration practice is based in Kenya, that jurisdiction is the primary, albeit not the only, source and foundation for this work, the focal point of reference and the citations from the law and practice incorporated in this research. The work consists of three chapters. Chapter one is a brief introduction and an overview of arbitration. This is followed by the statement of the research question, the justification for the research, methodology and the structure and content of the dissertation. Chapter two describes the legal and contextual framework for the investigation of the research questions in the selected jurisdictions of Kenya, Nigeria and Zimbabwe. Customary Law arbitration is included as a significant feature of African arbitration law. The UNCITRAL Model Law, the Arbitration Act, 1995 (Kenya), the Arbitration and Conciliation Act, 1988 (Nigeria), the Arbitration Act, 1996 (Zimbabwe), the Arbitration Act, 1996 (England), and the South African Draft Arbitration Bill are all used as legislative or statutory points of reference in the discussion of the research questions. Chapter 3 contains the main focus of the dissertation in which six recurrent arbitration problems in Kenya are discussed in the context of domestic arbitration. The research investigates (i) the illusiveness of consent as the basis for consensual arbitration (ii) jurisdictional challenges (iii) the procedural powers of the arbitral tribunal (iv) the disruptive effect of adjournments and postponements on the arbitral process (v) constraints on the granting of interim relief and (vi) the enforcement of the arbitral award. Original, creative and innovative proposals in response to these problems include: the express legislative recognition of the manifestation of consent in both the verbal and written forms of the arbitration agreement, the use of the constructive dispute resolution technique, statutory recognition of customary law arbitration, the use of an expedited arbitration procedure, the award of exemplary and punitive damages in arbitration, a code of sanctions to facilitate the arbitration process, and a simplified method of enforcement and execution of the arbitral award. The dissertation concludes with reflections on the future of arbitration in Africa, and the need for modernization and harmonization of arbitration laws for peaceful resolution of disputes and serious conflicts across Africa. The aim of this study is best illustrated by a short story: In the early nineties there was a man, untrained in any known discipline, who strutted court corridors, trade centres and market places, carrying a placard advertising himself to lawyers, traders and marketers as “An Arbitrator and Private Judge”. He attracted business, charged a handsome percentage fee on the value of the claim, was duly paid, until officialdom caught up with him and put paid to his burgeoning career as “Arbitrator-Judge”. But the reckless enthusiasm spawned by his wit and imagination, and the idiosyncratic practices in dispute resolution persisted and are manifest in Kenyan arbitration culture today. The need to remove bad practices, avoidable impediments, and inefficiency in the arbitration culture of Kenya in order to make its procedures and processes more efficacious, is the heart of this study.
AFRIKAANSE OPSOMMING: Arbitrasie as ‘n wyse van geskilbeslegting is wêreldwyd aan die toeneem. Die 1985 UNCITRAL Modelwetgewing insake Internasionale Kommersiële Arbitrasie het die momentum hiervoor gebied. Talle lande het vervolgens gereageer deur wetgewing geskoei op hierdie model te promulgeer. Die arbitrasiereg van drie lande, tewete Kenia, Nigerië en Zimbabwe, is vir doeleindes van hierdie proefskrif gekies op die basis van gemeenskaplike geskiedenis, soortgelyke wetgewing, soortgelyke probleme, gedeelde ervaringe en regionale verspreiding. Aangesien die skrywer se arbitrasie-praktyk in Kenia gebaseer is, word hierdie jurisdiksie as die primêre, alhoewel nie die enigste, bron en basis vir die navorsing gebruik. Die werk beslaan drie hoofstukke. Hoofstuk een verskaf ‘n kort inleiding tot en oorsig van die reg rakende arbitrasie. Dit word gevolg deur die navorsingsvraag, die rasionaal vir die navorsing, metodiek en die struktuur en inhoud van die proefskrif. Hoofstuk twee bied die regs- en kontekstuele raamwerk vir die ondersoek in die gekose jurisdiksies, nl. Kenia, Nigerië en Zimbabwe. ‘n Bespreking van gewoonteregtelike arbitrasie word ingesluit, aangesien dit ‘n belangrike deel van Arbitrasiereg in Afrika uitmaak. Die UNCITRAL Modelwetgewing, die Wet op Arbitrasie 1995 (Kenia), die Wet op Abitrasie en Konsiliasie 1988 (Nigerië), die Wet op Arbitrasie 1996 (Zimbabwe), die Wet op Arbitrasie 1996 (Engeland) en die Suid-Afrikaanse Konsepwet op Arbitrasie word gebruik as die statutêre basis vir die bespreking van die navorsingsvrae. Hoofstuk 3 handel met die hooffokus van die proefskrif. Ses probleme wat telkemale opduik in die konteks van plaaslike arbitrasies in Kenia, en wat as die navorsingsvrae geïdentifiseer is, word vervolgens bespreek. Hierdie probleme is (i) die ontwykendheid van toestemming as basis vir arbitrasie deur ooreenkoms; (ii) jurisdiksionêre uitdagings; (iii) die proseduele magte van ‘n arbitrasie tribunaal; (iv) die onderbrekende effek van verdagings en uitstelle van arbitrasie-verhore; (v) beperkinge op die verlening van tussentydse regshulp, en (vi) afdwinging en uitvoering van die arbitrasie-toekenning. Oorspronklike, kreatiewe en innoverende voorstelle as antwoord op hierdie probleme sluit in: die uitdruklike statutêre erkenning van toestemming tot arbitrasie in beide mondelinge en geskrewe vorms; die gebruik van konstruktiewe dispuutoplossingstegnieke; statutêre erkenning van gewoonteregtelike arbitrasies; die gebruik van ‘n versnelde arbitrasie-prosedure; die verlening van skadevergoeding in die vorm van ‘n strafbedrag; ‘n kode van sanksies om die arbitrasie proses te fasiliteer; en ‘n vereenvoudigde wyse waarop arbitrasie-toekennings afgedwing en uitgevoer kan word. Die proefskrif sluit af deur die toekoms van arbitrasie in Afrika te bespreek, asook die behoefte aan modernisering en harmonisering van arbitrasiereg ten einde geskille dwarsoor Afrika op ‘n vreedsame wyse te kan besleg.
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Falsafi, Alireza. "Applicable law in state contracts : the drive to create a supranational legal regime in international arbitral dispute settlement." Thesis, McGill University, 2003. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=19623.
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This thesis addresses the question of the application of a supra-national legal regime to the substance of disputes arising from State contracts in the context of international arbitral dispute settlement. Foreign private parties seek to subject the merits of their contractual relationships with a State arising from a State contract to a legal regime superior to the national law of the State party. Such a supra-national legal regime has been advanced through a de-localization trend in international arbitration. In the main, the de-localization trend defies a jurisdictional concept of the legal regime governing a State contract with a view to dissociating the contract from the legal jurisdiction of the State party. How paradoxical the idea of subjecting the substance of a State contract to a Stateless legal regime proves is an issue that the present thesis embarks upon.
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Wang, Wenying. "Arbitral power in the People's Republic of China reality and reform /." Click to view the E-thesis via HKUTO, 2004. http://sunzi.lib.hku.hk/hkuto/record/B31782504.
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Li, Ning. "Mechanisms of accepting and rejecting expert evdence in arbitration and their difficulty in practice." access full-text access abstract and table of contents, 2007. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b2205246xa.pdf.
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Thesis (M.A.)--City University of Hong Kong, 2007.Title from PDF t.p. (viewed on Sept. 7, 2007) "LW6409A dissertation of MA arbitration and dispute resolution" Includes bibliographical references.
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Kirunda, Solomon Wilson. "Slithering towards uniformity: the international commercial arbitration and conciliation working group of UNCITRAL as a key player in the strengthening and liberalisation of international trade." Thesis, University of the Western Cape, 2005. http://etd.uwc.ac.za/index.php?module=etd&action=viewtitle&id=gen8Srv25Nme4_2438_1254403625.
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The objective of this study was to examine and review the main features and works of the arbitration and conciliation working group of UNCITRAL while demonstrating their impact on international trade.
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Botma, Carli Helena. "The role of reasonableness in the review of labour arbitration awards." Thesis, Nelson Mandela Metropolitan University, 2009. http://hdl.handle.net/10948/1035.
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The Labour Relations Act 66 of 1995 in section 145 and the Arbitration Act 42 of 1965 in section 33 uses wording very similar to one another to specifically enable the labour court to review CCMA and private arbitration awards respectively. As a result, labour arbitration award reviews are regarded as part of the family of special statutory reviews; the implication of such a classification being that the situation specific statutory provision(s) and the jurisprudential principles developed thereunder are applicable rather than those applicable to reviews in general. When the common purpose of the review procedure is then read with the legislature’s objective of quickly and finally resolving labour disputes at arbitration level as well as the limited grounds for review as provided for in the LRA and the AA, indications are that the labour courts’ review powers should be restrictively interpreted. However, because the making of CCMA arbitration awards also constitutes administrative action, the review thereof is also influenced by the constitutional right to just administrative action and reasonableness in particular. This does however not mean that applicants on review can rely directly on section 33 of the Final Constitution or on the broader grounds of section 6 of the PAJA to review CCMA arbitration awards on the basis of unreasonableness. Section 145 of the LRA constitutes administrative action legislation within the specialised labour law sphere and reasonableness is not a ground mentioned therein. A constitutionally consistent interpretation of section 145 however has the effect that reasonableness suffuses the statutory defined grounds for review; a state of affairs that does not threaten the restrictive scope of CCMA arbitration award reviews. In terms thereof, courts on review must establish whether the decision, alleged to have been reached by the commissioner as a result of the occurrence of one or more of the section 145 grounds for review, is one that a reasonable decision-maker could not reach. This interpretation accords far better with the legislature’s specific objectives pertaining to labour arbitration award reviews and the permissible range of reasonableness further ensures that awards are not easily interfered with on review. When a court is then called upon to determine whether or not a decision is reviewable in terms of section 145, it is entitled to have regard to both the award and the record of the proceedings. If, after such scrutiny, the court is of the opinion that the decision was arrived at as a result of the occurrence of a defect as contemplated by section 145 of the LRA, the decision should be reviewed and set aside irrespective of the fact that the outcome can be sustained by other reasons also identifiable from the record; the focus of review always being on the commissioner’s process of reasoning and the way in which he arrived at his findings rather than the outcome of the process. A court should however be mindful of the fact that erroneous reasons for findings per se are not reviewable grounds, but at best serve as evidence of a reviewable ground that will in conjunction with other considerations have to be sufficiently compelling to justify an inference that the decision is unreasonable. In the case of jurisdictional reviews, the reasonableness standard is also applicable because the focus is on the commissioner’s subjective reasons for his findings rather than the jurisdictional fact’s objective existence. A court on review can accordingly set aside a decision following upon the non-observance of a jurisdictional fact if the commissioner, in deciding that the jurisdictional fact existed, committed one or more of the section 145 grounds for review. In the case of private arbitration awards, applicants seeking a review must do so on the grounds recognised in section 33 of the AA and reasonableness is not one of them. This is however not the only reason why these awards are also not subject to the scrutiny of the reasonableness test on review. The other reason relates to the fact that the issuing of private arbitration awards does not constitute administrative action. The disputing parties can also not by agreement incorporate the reasonableness standard into private arbitration award reviews conducted by the labour court. Such parties are however entitled to establish a private appeal or private review body in their arbitration agreement, clothing it with the powers that they wish to confer upon it, including the ability to review an award subject to the reasonableness standard.Abstract
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杜依蘭 and Elaine To. "Arbitration in construction industry: a Hong Kong perspective." Thesis, The University of Hong Kong (Pokfulam, Hong Kong), 2002. http://hub.hku.hk/bib/B3125181X.
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Jourdan-Marques, Jérémy. "Le contrôle étatique des sentences arbitrales internationales." Thesis, Versailles-St Quentin en Yvelines, 2014. http://www.theses.fr/2014VERS025S.
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Par un étonnant paradoxe, le contrôle étatique des sentences arbitrales internationales conduit à réintroduire la justice étatique là où les parties avaient voulu l’exclure. Mais ce paradoxe pourrait n’être qu’apparent. Une approche fondée sur la distinction entre les intérêts publics et les intérêts privés ouvre de nouvelles perspectives. L’examen réalisé par le juge étatique l’invite à s’assurer, d’une part, du respect par les arbitres des intérêts privés des parties et, d’autre part, à contrôler la compatibilité de la sentence avec ses intérêts publics. Aussi paraît-il concevable que l’intérêt en cause puisse modifier directement la nature du contrôle exercé. Parallèlement, le juge compétent est tantôt indirectement désigné par les parties, tantôt déterminé par le lieu d’exécution de la sentence. Par conséquent, il est légitime d’assigner aux juges de l’annulation et de l’exequatur une mission distincte, mais complémentaire. Le juge de l’annulation examinerait les intérêts privés et le juge de l’exequatur garantirait la conformité de la sentence aux intérêts publics. En définitive, la distinction des intérêts privés et des intérêts publics pourrait devenir un instrument de redéfinition du contrôle étatique des sentences arbitrales internationales. À la fois plus respectueux de la volonté des parties, plus protecteur des intérêts étatiques et offrant une solution au désordre actuel du contrôle des sentences arbitrales, ce nouveau paradigme concourrait à l’efficacité de l’arbitrageState control of international arbitral awards leads to a clear paradox, as it involves State court intervention to a procedure where the parties intended to exclude it. However, this paradox might only be a mirage. An approach based on the distinction between public interests and private interests opens up new perspectives. The review by the national judge invites him, on the one hand, to ensure the arbitrators’ compliance with the private interests of the parties, and, on the other hand, to control the compatibility of the award with public interests. Also, it seems conceivable that the interest in question could directly influence the nature of such control. At the same time, the competent judge is sometimes indirectly appointed by the parties, and sometimes determined by the place of enforcement of the award. It is therefore legitimate to give a separate, yet complementary, role to the annulment judge and to the enforcement judge. The annulment judge would consider the private interests whereas the enforcement judge would ensure the award's compliance with the public interests. Ultimately, the distinction between private interests and public interests could constitute the basis of redefining State control over international arbitral awards. More respectful of the will of the parties, more protective of State interests, this new paradigm would contribute to the effectiveness of arbitration
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Karton, Joshua David Heller. "The culture of international arbitration and the evolution of contract law." Thesis, University of Cambridge, 2011. https://www.repository.cam.ac.uk/handle/1810/252239.
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International commercial arbitration ('ICA') is typically characterised as a procedural alternative to litigation in national courts. The great majority of scholarly literature on ICA relates to its procedure, as opposed to substance. This is not surprising since, in ICA, the governing substantive law is usually the national law of some state. One might therefore expect that there would be no difference between the decisions of arbitrators and judges on matters governed by substantive law. However, this intuition remains untested. ICA exists outside the legal system of any state and is specifically adapted for the resolution of international commercial disputes. The decisions of international arbitrators are fertile ground for the growth of international (i.e., transnational) commercial law. A better understanding of arbitrators' decision making will therefore shed light on how international commercial law is likely to evolve. Such understanding would also enable both consumers and providers of arbitration services to make better-informed decisions. International arbitrators' decisions are not susceptible to traditional legal analysis because only a tiny, non-representative sample of arbitral awards is published. The researcher simply lacks access to the necessary data. For the same reason, quantitative statistical studies of arbitrators' decisions are unlikely to yield useful insights. This thesis adopts a sociological approach. It identifies social norms that constitute an incipient culture of ICA and assesses the effects of these norms on arbitrators' decisions on the merits. Part I consists of two case studies that focus on specific areas of contract law. These case studies, which employ standard comparative law methodologies, provide evidence that the outcomes reached in ICA do diverge from those reached in national court litigation, even when arbitrators and judges purport to apply the same substantive laws. Part II employs the sociological methodology of 'grounded theory' to explain this divergence. It analyses the writings of arbitrators, counsel and commentators in order to describe two classes of social norms: those arising from the institutional structure of ICA and those arising from the values shared by international commercial arbitrators. The thesis concludes by predicting, in general terms, the effects of these social norms on arbitrators' decisions on the merits. It also suggests the specific contract law doctrines that international arbitrators will tend to prefer. These doctrines represent a likely future of international commercial law.
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Córdova, Schaefer Jesús. "¡I did not sign anything!: the non-signatories of the arbitral convention. The structure of article 14 of the peruvian arbitration law." THĒMIS-Revista de Derecho, 2018. http://repositorio.pucp.edu.pe/index/handle/123456789/123865.
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Modern commercial relations have been making their dynamics more complex over the years and have made of arbitration the best way of conflicts resolution. One of the most complex changes has been the addition of elements in national and international arbitration agreements. It is also of fundamental importance to define who are the parties involved in the arbitration, both parties involved and non-signatories.In this article, the author analyzes the figure of third parties who have not subscribed to the arbitration agreement in light of the Peruvian Arbitration Law.In addition, the author proposes solutions for its better regulation.Las relaciones comerciales modernas han ido complejizando su dinámica a través de los años y hacen del arbitraje el medio de solución de controversias por excelencia. Uno de los cambios más complejos ha sido el agregado de elementos en los convenios arbitrales en el ámbito nacional e internacional que deben analizarse. Es, además, de relevancia fundamental definir quiénes son las partes que intervienen en el arbitraje, tanto las partes involucradas como los no-signatarios.En este artículo, el autor analiza la figura de los terceros que no hayan suscrito el convenio arbitral a la luz de la Ley Arbitral Peruana, además de proponer soluciones para su mejor regulación.