Academic literature on the topic 'Form and evidence of the arbitration agreement'
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Journal articles on the topic "Form and evidence of the arbitration agreement"
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Devkota, Sanad. "Viewpoint of the Supreme Court of Nepal on the Arbitration Process in the Light of Party Autonomy." Tribhuvan University Journal 35, no. 2 (December 31, 2020): 47–58. http://dx.doi.org/10.3126/tuj.v35i2.36189.
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Arbitration is a contract-based form of binding dispute resolution. In other words, a party’s right to refer a dispute to arbitration depends on the existence of an agreement between them and the other parties to the dispute that the dispute may be referred to arbitration. Arbitration is a private process where disputing parties agree that one or several individuals can make a decision about the dispute after receiving evidence and hearing arguments. The arbitration process is similar to a trial in that the parties make opening statements and present evidence to the arbitrator. Conflicts have existed in all cultures, religions and societies since time immemorial, as long as human have walked the earth. Human society is a repertoire where differences arise and persist as salient features, but this is also a platform where varieties of disputes find management in the form of resolution to energize the society. As conflicts are an integral part of human interaction, one must learn to deal with them tactfully, conventionally, disputes – commercial or otherwise were resolved by litigation but due to delays, costs, publicity and technicality associated with litigation, alternative dispute resolution (ADR) processes evolved. Various means of ADR or out of court settlement of disputes such as negotiation, conciliation and arbitration have come into practice. In the modern era, the business activities are increasing day by day. Along with the business activities, its complexities, differences, and disputes are also increasing day by day. The traditional method of settling disputes is the litigation process in the court of law. From the perspective of concerned parties, settlement of these disputes as quick as possible is desired. But because of the lengthily procedure and case load settlement through court is not possible. For this reason, parties were looking for the alternative process where both the parties can trust impartial person who will solve their disputes within short period of time.
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Ahmad Yani Kosali and Dimas Pratama Putra. "Clause of Unlawful Action that May Void Arbitration Rules." Journal of Sustainable Development Science 3, no. 1 (March 30, 2021): 26–34. http://dx.doi.org/10.46650/jsds.3.1.1063.26-34.
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Arbitration is a way of resolving a civil dispute outside a public court based on an arbitration agreement made in writing by the disputing parties. The problem in this research is whether the Arbitration decision can be overturned by the District Court because it contains clauses of illegal acts?, and What are the forms of illegal acts that can be overturned by the District Court? The type of research used is descriptive normative legal research. From the results of the research, it can be concluded that: An Arbitration Award can be overturned by the District Court because it contains a clause on illegal acts, is a decision that has been tested and examined through a civil court hearing that it is proven based on the evidence submitted by the disputing parties that the arbitration award contains actions against the law. And a form of illegal action that can be annulled by the District Court is a decision that has permanent legal force stating that the arbitration award is proven to have been an illegal act committed by one of the parties.
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Baghbanian, Abdolvahab, Tracy Merlin, Drew Carter, and Shuhong Wang. "Methods for the health technology assessment of complex interventions: a protocol for a scoping review." BMJ Open 10, no. 11 (November 2020): e039263. http://dx.doi.org/10.1136/bmjopen-2020-039263.
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IntroductionIn healthcare policy and economic literature, research on the health technology assessment (HTA) of complex interventions (CIs) is becoming increasingly important. In many developed countries, HTA guides decision-making to help achieve greater value for money when funding health care. However, research has yet to identify the forms of evidence and evaluation criteria that should be used in the HTA of CIs. Previous research has established that the HTA of CIs requires multiple factors to be evaluated but there is no agreement on which factors ought always to be considered. There is equally little agreement on which forms of evidence ought to be collected or synthesised and how. We plan to perform a systematic scoping review in order to identify the range of evaluation criteria and types of evidence currently used in the HTA of CIs.Method and analysisThis protocol was developed to guide the methodological framework for the conduct of a scoping review on health technology assessment (HTA) of complex interventions (CIs), using the Joanna Briggs Institute guidelines and the six-stage framework proposed by Arksey and O’Malley, in addition to more recent innovations in scoping review methodology. A grey literature search will supplement the primary searches of seven electronic databases for studies available in English between January 2000 and August 2020. Two reviewers will independently screen all search results for inclusion and data will be extracted using a customised data extraction or charting form. Any dispute will be resolved by consensus or through arbitration by a third author. The mnemonic Population, Concept and Context will be adopted to establish criteria for selecting relevant literature, and the Preferred Reporting Items for Systematic Reviews and Meta-Analyses: Extension for Scoping Review will be used for reporting the results. Several explanatory-descriptive methods will be used for analysing the extracted data including frequency and trend analyses as well as reflexive thematic coding and analysis.Mapping evidence on the HTA of CIs will allow us to gain a better understanding of both established and emerging practices, including the information types, requirements, values and parameters that are incorporated in the HTA of CIs. We also expect the findings of the scoping review to help identify research gaps that will guide future studies. As healthcare becomes more complex in its delivery, it is timely to determine how these complex interventions should be assessed so that policy decisions can be made about whether implementation and public funding is warranted.Ethics and DisseminationThis scoping review will involve secondary analysis of already collected data, and thus, does not require ethics approval. The research findings will be submitted to peer-reviewed journals for publication and will also be disseminated at conferences and seminars.
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Ryšavý, Lukáš. "Form of Arbitration Agreement in a Comparative Perspective." International and Comparative Law Review 20, no. 2 (December 1, 2020): 38–72. http://dx.doi.org/10.2478/iclr-2020-0017.
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Summary The arbitration agreement is one of the basic pillars and conditions of arbitration, without which arbitration cannot take place. In addition to the content requirements, it must be concluded in the required form in accordance with the relevant regulations. This article deals with the form of an arbitration agreement and on the example of various legal orders it shows the possibilities that can be encountered in the issue of formal requirements on an arbitration agreement. The comparative approach is intended to underline the importance of arbitration in international context and the importance of uniform, or at least similar, regulation from the point of view of legal certainty, for example. Despite the partial differences, it can be positively stated that the legal systems strive for a balance between informality and excessive formalism, and respect (also for practice) important principles important such as potius valeat actus quam pereat or the autonomy of the parties.
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Surma-Buczek, Aleksandra. "The Form of the Arbitration Agreement – Comparative Analysis." Studenckie Zeszyty Naukowe 19, no. 30 (June 16, 2017): 91. http://dx.doi.org/10.17951/szn.2016.19.30.91.
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Ranjbar, Masoudreza, and Mehdi Dehshiri. "General and Specific Conditions of Arbitration Agreement." Journal of Politics and Law 10, no. 5 (November 29, 2017): 95. http://dx.doi.org/10.5539/jpl.v10n5p95.
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Arbitration as an alternative method of dispute resolution intrinsically is considered an exceptional institution. Being exceptional the arbitration institution requires to form it under the agreement of the will of the parties in the form of the arbitration agreement and thus until the parties have not agreed, Judgment is not imposed on them. Arbitration agreement is a contract in term of nature, and like all contacts must be respected the general rules of contract in it. The noteworthy point about this is that how is the observation of these conditions in arbitration agreement? In addition, this contract has the contents and conditions that the contracting parties agree to it and the basis of action of arbitrator or arbitrators is in the dispute settlement that it is interpreted as the specific conditions of the contract. The most important cases that often are noticed them in arbitration agreements and in the case of silence of the parties, the law governing the arbitration is replaced with their will in this regard, as follow: competence of arbitrator, language arbitration, the arbitration time, the arbitration costs, location of investigation and the number of arbitrators. The main question in this regard is this, how is the mutual consent of the parties of agreement in this regard. The answer to these two questions is the subject of this paper, which has been dealt with it through library studies and with the content analysis method.
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Avsiievych, Alla. "Historical stages of development of the arbitration agreement and arbitration." Naukovyy Visnyk Dnipropetrovs'kogo Derzhavnogo Universytetu Vnutrishnikh Sprav 5, no. 5 (December 30, 2020): 125–33. http://dx.doi.org/10.31733/2078-3566-2020-5-125-133.
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International commercial arbitration is one of the most important institutions of modern law, an important form of resolving disputes arising in foreign economic activity. The history of international commercial arbitration has significantly affected its current state and therefore needs detailed consideration. To study this topic, it is necessary to clearly distinguish between the types of arbitration that existed at one time or another. The article is devoted to the stages of development of international commercial arbitration and its application to resolve international commercial disputes. The article examines the provisions of legal acts that for the first time define the concept and legal status of international commercial arbitration.
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Blanco García, Ana Isabel, and Pablo Quinzá Redondo. "Control judicial de la validez del convenio arbitral en un contrato de adhesión: Sentencia Núm. 409/2017 de 27 de junio del Tribunal Supremo = Arbitration agrement and standard form contracts: judgement number 409/2017 of 27th june of the Spanish Supreme Court." CUADERNOS DE DERECHO TRANSNACIONAL 10, no. 1 (March 8, 2018): 544. http://dx.doi.org/10.20318/cdt.2018.4135.
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Resumen: La sentencia núm. 409/2017 del Tribunal Supremo aborda la posible aplicación de un convenio arbitral contenido en un contrato de adhesión en un asunto sobre la nulidad de contratos financieros SWAP y PUT. En particular, se aborda el alcance de la competencia del juez ordinario pata interpretar el convenio arbitral, así como las propias cuestiones cubiertas por el mismo.Palabras clave: arbitraje, contratos de adhesión, convenio arbitral.Abstract: Judgment number 408/2017 of the Spanish Supreme Court deals with the potential application of an arbitration agreement in the case of a standard form contract. In particular, it focuses on the jurisdiction of the judge to interpret the arbitration agreement and on the questions that are covered by the arbitration agreement itself.Keywords: arbitration, standard form contract, arbitration agreement
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Siregar, Nurdin, and Radisman Saragih. "Penyelesaian Sengketa Para Pihak di Bidang Bisnis melalui Arbitrase." to-ra 2, no. 1 (May 1, 2016): 305. http://dx.doi.org/10.33541/tora.v2i1.1133.
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Arbitration is a way of solving civil disputes outside the public courts based the arbitration agreement made in writing by the parties to the dispute. The arbitration agreement is an agreement in the form of the arbitration clause contained in a written agreement made by the parties before a dispute arises or a separate arbitration agreement made by the parties after a dispute arises. In everyday life with various activities of members of today’s society, immense possibility of friction-friction in running business and trade that ended with disputes between members of the public and businesses. In efforts to completion, it would seem that this form of dispute diversity define the core issues then this diversity will be easy settlement with the provisions and rules of law that are sure to be able to look for the solution either arbitration or by mediation, consulting, negotiations, konsialiasi. The arbitration decision will be implemented after the verdict copy officially registered, but the arbitration ruling in accordance with the provisions of the law Arbitration can still be filed annulment if the decision is thought to contain elements, letters or documents are filed in the examination after the verdict recognized dinyataakan counterfeit or fake, after adjudication documents found prescriptive, which is hidden by the other party or the decision taken on the results of a ruse conducted by one of the parties in the dispute. That for legal certainty associated with the judiciary also good for the winning side and the decision is legally binding.
Kata Kunci: Penyelesaian sengketa bisnis melalui arbitrase
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Do, Van Dai. "A Proposal for the Abandonment of the Writing Requirement for Arbitration Agreements in National Laws." Vietnamese Journal of Legal Sciences 2, no. 1 (September 1, 2020): 16–44. http://dx.doi.org/10.2478/vjls-2020-0008.
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AbstractAn arbitration agreement is an agreement in which two or more parties agree that a dispute which has arisen or may arise between them shall be resolved by one or more arbitrators. For the past decades, the written form has been a key requirement for arbitration agreements. However, there has arisen a shift in national laws towards the abandonment of this formal requirement to give the parties more freedom in the expression of their arbitration agreement. This argues for this abandonment and discusses how this can be realized in national laws.
Dissertations / Theses on the topic "Form and evidence of the arbitration agreement"
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Jabardo, Cristina Saiz. "Extensão da cláusula compromissória na arbitragem comercial internacional: o caso dos grupos societários." Universidade de São Paulo, 2009. http://www.teses.usp.br/teses/disponiveis/2/2135/tde-06102010-130941/.
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O objeto de estudo desta dissertação é a abrangência subjetiva da cláusula compromissória, especificamente daquela celebrada por sociedades pertencentes a grupos societários. O problema, ainda novo no Brasil devido ao desenvolvimento recente da arbitragem em nosso país, já foi objeto de muito debate na Europa e nos Estados Unidos, onde a arbitragem é usada há muitos anos como método alternativo de resolução de conflitos. No âmbito da arbitragem comercial internacional, consolidou-se, tanto na jurisprudência como na doutrina, a teoria da unidade econômica dos grupos societários. Ela reconhece a especificidade do problema que a presença de agrupamentos de sociedades suscita na arbitragem, devido, essencialmente, à dupla realidade que eles representam unidade diretiva e econômica e diversidade jurídica. Nesta dissertação, procuramos expor as bases sobre as quais essa teoria, consolidada na prática comercial internacional, se assenta. Se no Brasil o tema não foi suficientemente discutido, podemos aprender as lições daqueles que não só já debateram exaustivamente a questão como, também, parecem já ter encontrado uma solução, ainda que ela não seja indene de críticas e ainda mereça ser aperfeiçoada. De início, tentamos conceituar e caracterizar os grupos societários. Em seguida, fizemos um apanhado de casos emblemáticos da jurisprudência arbitral e estatal, de diversos países, que recorreram à teoria da unidade econômica do grupo. Nosso intuito foi verificar a solução conferida ao problema por aqueles que se depararam com ele no caso concreto. Depois, procuramos expor a visão da doutrina sobre a teoria da unidade econômica do grupo, para podermos concluir onde reside o problema central da questão. Ao fim, discutimos o possível obstáculo, apontado por alguns autores, à aplicação da teoria no Direito brasileiro.The purpose of this paper is to discuss who are the parties to the arbitration agreement, especially regarding the convention executed by companies that form part of a group. The issue, still topical in Brazil due to the recent development of the arbitration in our country, has already been subject to much debate in Europe and in the United States, where arbitration has been used for years as an alternative dispute resolution method. In international arbitration, the group of companies theory has been restated, both within the legal authorities and in case law. Such theory acknowledges the specificity of the issue raised by the presence of groups of companies in arbitration, especially due to their dual characteristics managerial and economical unit and legal diversity. In this paper, we have sought to settle the basis over which such theory, already settled in the international commercial arbitration practice, is construed. Since in Brazil the subject hás been scarcely discussed, we may learn lessons from those who have not only exhaustively debated it but who also seem to have found a way to solve it, even if it is not immune to criticism and still ought to be improved. We have initially tried to clarify the notion and the characteristics of the groups of companies. We have subsequently gathered a number of illustrative arbitral and state case law, from different countries, which have made use of the group of companies theory. Our aim was to verify the solution given to the issue by those who have actually been faced with the problem. Then, we have tried to present the legal authoritys view on the group of companies theory in order to conclude where the issue is in fact centered. In the end, we have discussed a possible obstacle, which certain authors have raised, as to the application of the theory in the Brazilian Law.
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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.
Books on the topic "Form and evidence of the arbitration agreement"
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Müller, Andreas. Protecting the integrity of a written agreement: A comparative analysis of the parol evidence rule, merger clauses and no oral modification clauses in U.S., English, German and Swiss law and international instruments (CISG, PICC, PECL, DCFR and CESL). The Hague, The Netherlands: Eleven International Publishing, 2013.
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Gabrielle, Kaufmann-Kohler, and Rigozzi Antonio. 3 The Arbitration Agreement. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780199679751.003.0003.
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This chapter discusses the notion, content, and effects of the arbitration agreement, defined as an agreement to submit to arbitration all or certain disputes that have arisen or may arise between the parties in respect of a defined legal relationship, whether contractual or not, which may be in the form of a clause in a contract or of a separate ‘submission agreement’ (compromis arbitral). The chapter examines the principle of separability and the requirements for the validity of the arbitration agreement, namely arbitrability, written form, and substantive validity, including the agreement’s formation, interpretation, extension to third parties, and termination. Finally, it discusses to what extent defects of the arbitration agreement can be remedied by conduct.
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Nigel, Blackaby, Partasides Constantine, Redfern Alan, and Hunter Martin. 7 Role of National Courts during the Proceedings. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198714248.003.0007.
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This chapter examines the role that national courts play at the beginning, during, and end of arbitration proceedings. Arbitration is dependent on the support of the courts, which alone have the power to intercede when one party seeks to sabotage proceedings. This intervention may be possible at the beginning of the arbitral process in the context of the enforcement of the arbitration agreement, the establishment of the tribunal, and challenges to jurisdiction. National courts may also intervene during proceedings: it may be necessary for the arbitral tribunal or a national court to issue orders intended to preserve evidence, to protect assets, or in some other way to maintain the status quo pending the outcome of the arbitration. Under the UNCITRAL Rules and Model Law, such orders are called ‘interim measures’. The chapter also describes how national courts exercise judicial control over the resulting award.
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David, Scorey, Geddes Richard, and Harris Chris. Part III Dispute Resolution Under the Bermuda Form, 16 The Arbitration Agreement. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198754404.003.0016.
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This chapter provides an overview of practical and theoretical aspects of arbitrating disputes concerning Bermuda Form policies, building upon the contents of earlier chapters. A well known feature of the Bermuda Form is its dispute resolution mechanism, namely the requirement for arbitration in London to resolve any dispute between the policyholder and the insurer that cannot be resolved or settled by early negotiation. This requirement for London arbitration is contained in Article VI.N of Form XL004, in the ‘conditions’ section of the Bermuda Form. Article VI.N is a lengthy and detailed clause that contains several subclauses addressing distinct concepts and different aspects of the dispute resolution process and arbitration procedure.
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David, Scorey, Geddes Richard, and Harris Chris. Part III Dispute Resolution Under the Bermuda Form, 18 Commencement of the Arbitration. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198754404.003.0018.
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This chapter discusses the procedures involved in the commencement of arbitration. Just as an arbitration agreement must be in writing, arbitral proceedings must also be commenced by way of a written notice unless the parties have agreed otherwise. The claimant's lawyers will usually commence proceedings by sending a formal notice of arbitration or request for arbitration — the precise nomenclature chosen is irrelevant. This advises the other party of a request to arbitrate, sets out the basis of the request, and appoints an arbitrator. A Bermuda Form arbitration could be validly commenced as easily by putting similar information in the form of a letter to the opposing party, or to their lawyers. The remainder of the chapter covers the selection of arbitrators, replacement of arbitrators, issues of jurisdiction of an arbitral tribunal, and court applications.
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Frédéric Gilles, Sourgens, Duggal Kabir, and Laird Ian A. Part I Introduction, 1 Situating Evidence in the Process of Investor-State Arbitration. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198753506.003.0001.
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This chapter submits that investor-state arbitration faces a common core set of problems that tribunals hearing these claims must resolve. Commentators of, and participants in, investor-state arbitration typically submit that there is only one rule of evidence: the free appreciation of evidence by the arbitrator. Given the ubiquity of the sentiment that there are no rules of evidence in investor-state arbitration, this chapter first attempts to examine where this perceived wisdom has gone wrong. This premise starts from a foundational coincidence of the who, what, how, and why of the decision-making process involving states and foreign investors. The coincidence explains why principles could form in the first place, given the role of the process participants, the subject matter of the process, and the operations of the process, as well as its constitutive values.
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Hardy, Duncan. Arbitration and Para-Judicial Mediation. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198827252.003.0003.
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Despite the preoccupation of German legal scholarship with institutional courts such as Landgerichte, the majority of judicial and para-judicial activity involving Upper German elites took place within ad hoc meetings of arbitrators or mediators. Arbitration, understood in the broadest sense as a form of organized multilateral negotiation, was the preferred means by which all types of political actors resolved disputes and conflicts, in part because of the lack of a centralized authority capable of providing an enforceable judicial framework. Abundant evidence survives of princes, bishops and abbots, noblemen and women, urban governments, and even village leaders participating in arbitration, either as litigants or mediators. Arbitration typically took place at appointed meetings or assemblies known as Tage (diets). Additionally, even ostensibly official and institutionalized courts, such as the imperial aulic court at Rottweil, resembled temporary arbitrational panels in their procedures and in the judicial discourses employed in their documentation.
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David, Scorey, Geddes Richard, and Harris Chris. Part III Dispute Resolution Under the Bermuda Form, 22 Interest and Costs. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198754404.003.0022.
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A tribunal will ordinarily have to make determinations as to what award of costs it will make, and, where appropriate, what award of interest it should make. In some cases, a tribunal will not invite submissions on interest and costs until it has made a ruling on the substantive merits; in other cases, the tribunal will invite the parties to make submissions at the close of the hearing. The method adopted is a decision for the arbitrators to take, absent agreement between the parties. This chapter discusses legal and practical questions that frequently arise for the parties and the arbitrators in relation to questions of interest and costs in Bermuda Form case. It assumes that no provision has been made in the Bermuda Form policy or in any arbitration agreement to set out expressly the powers of the tribunal as regards an award of interest.
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Craig, Tevendale, and Bakstad Samantha. Part I Commercial Arbitration in the Energy Sector, 2 Upstream Oil and Gas Disputes. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198805786.003.0002.
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This chapter focuses on Joint Operating Agreements (JOAs). A JOA is an agreement between two or more companies which defines their respective rights and obligations in the exploration of a hydrocarbon project. The purpose of the JOA is for the participating companies to share risks (costs) and rewards (revenues) in relation to the project, and to define their respective roles. Among other things, the chapter discusses leading model form JOAs, as well as the interpretation and application of clauses typically found in JOAs, such as exculpatory or liability limitation clauses, pre-emption clauses, and clauses dealing with the consequences of a party's default or forfeiture. It also analyzes case law from various jurisdictions regarding implied or statutory obligations, such as duties of ‘good and fair dealing’ and fiduciary duties amongst the partners.
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David, Scorey, Geddes Richard, and Harris Chris. Part II The Bermuda Form in Detail, 3 Conflict of Law Issues: Substantive Issues vs Procedural Issues. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198754404.003.0003.
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The Bermuda Form is not immune from conflict of law issues. Such issues arise from its very nature as an ‘international’ document that provides coverage to large and often multinational corporations in respect of legal liability arising from their global operations in a variety of jurisdictions. This chapter highlights some of the conflict of law issues that may be encountered when arbitrating disputes arising from Bermuda Form policies and suggests some possible solutions to assist in choosing between the myriad of potential and competing applicable laws. Topics covered include express choices of law in the Bermuda Form, the severability principle, potential applicable laws, proper law of the contract, proper law of the underlying claim, proper law of the conflict of law rules applied to the policy, proper law of the arbitration agreement, procedural law, and curial law.
Book chapters on the topic "Form and evidence of the arbitration agreement"
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Magraw, Kendra. "Trends and ISDS Backlash Related to Non-Disputing Treaty Party Submissions." In Public Actors in International Investment Law, 79–96. Cham: Springer International Publishing, 2021. http://dx.doi.org/10.1007/978-3-030-58916-5_5.
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AbstractSome international investment agreements (IIAs) allow states that are parties to a treaty, but are not party to a specific dispute under that treaty, to intervene on a limited basis in order to make submissions on matters of treaty interpretation. Such mechanisms have proved to be highly valued by treaty parties, as evident by the many recently-concluded IIAs containing increasingly sophisticated non-disputing treaty party (NDTP) provisions. This chapter: (1) provides the background on NDTPs mechanisms, with a focus on the North American Free Trade Agreement (NAFTA) (the first-known IIA to contain such a provision); (2) examines the possible connection between tribunals failing to give due regard to treaty parties’ interpretive positions (again focusing on NAFTA) and the current backlash against investor-state dispute settlement (ISDS); and (3) analyses trends in recently-concluded IIAs. It is argued that the apparent lack of deference given by tribunals to NDTP submissions may be contributing to the current backlash against ISDS, based on two discernible trends: (1) an increase in the number of IIAs containing NDTPs provisions; and (2) provisions that now state that not only are treaty interpretations made by treaty parties binding on tribunals (such provisions also have their genesis in NAFTA), but that, in addition, tribunals’ decisions must be consistent with such agreed interpretations (the latter an innovation of a NAFTA party in 2003). Such trends are also visible at the institutional and multilateral levels, such as the revision of the Arbitration Rules of the International Centre for Settlement of Investment Disputes (ICSID) and the Mauritius Convention on Transparency in ISDS of the United Nations Commission on International Trade Law (UNCITRAL), and show no sign of slowing down.
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Martin F, Gusy, and Hosking James M. "Part I Commentary on the ICDR International Rules, 24 Article 24—Interim Measures." In A Guide to the ICDR International Arbitration Rules. Oxford University Press, 2019. http://dx.doi.org/10.1093/law/9780198729020.003.0025.
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This chapter discusses Article 24 of the ICDR Rules, which empowers the tribunal to order any interim or conservatory measures it deems necessary, including—but not limited to—injunctive relief and measures necessary for the protection of property. The measures may be intended to preserve evidence for use in the case, prevent property from being interfered with, or, more generally, to preserve the status quo pending determination of the dispute. In addition to empowering the tribunal to take such measures, Article 24(3) also states that a request to a judicial authority for interim measures is not inconsistent with the arbitration agreement. As the newly introduced Article 24(5) makes clear, Article 24 should not be confused with Article 6, which provides for ‘emergency measures of protection’ to be granted by an ‘emergency arbitrator’ where the tribunal has not yet been appointed.
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Bantekas, Ilias, and Pietro Ortolani. "Definition and Form of Arbitration Agreement." In UNCITRAL Model Law on International Commercial Arbitration, 112–40. Cambridge University Press, 2020. http://dx.doi.org/10.1017/9781108633376.009.
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Hiroshi, Oda. "6 Arbitration Agreements." In Russian Arbitration Law and Practice. Oxford University Press, 2020. http://dx.doi.org/10.1093/law/9780198712442.003.0006.
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This chapter addresses arbitration agreements. The basis of arbitration is the arbitration agreement, which represents the intention of the parties to refer the dispute to arbitration. The court to which an action was taken on the subject matter of an arbitration agreement must terminate the procedure and refer the parties to arbitration, provided that either party applies for termination of the procedure not later than that party’s first submission on the merits of the case. This does not apply if the arbitration agreement is invalid, has lost effect, or is unenforceable. If an action was taken in court, the arbitration process may start, or continue, while the court is yet to decide on jurisdiction. The chapter considers the form of arbitration agreement, the court practice on arbitration clauses, and the scope of the arbitration agreement.
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Jianlong, Yu, and Cao Lijun. "5 Arbitration Agreement: (Articles 5 and 6)." In A Guide to the CIETAC Arbitration Rules. Oxford University Press, 2020. http://dx.doi.org/10.1093/law/9780199671717.003.0005.
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This chapter discusses the important subject of arbitration agreement, covering Article 5 and Article 6 of the CIETAC Rules. Article 5.1 defines ‘arbitration agreement’ as ‘an arbitration clause in a contract or any other form of a written agreement concluded between the parties providing for the settlement of disputes by arbitration’. In practice, arbitration agreements may be established in one of the following three ways in China: contract clause; submission agreement; and incorporation by reference. The chapter then looks at the statutory requirements for a valid arbitration agreement; the common defects of arbitration agreements; the separability of arbitration agreements; and the binding effect of an arbitration agreement on non-signatory parties. Meanwhile, Article 6 sets forth provisions with regard to objection to arbitration agreement and/or arbitral jurisdiction. The chapter considers several aspects of the court’s procedure in deciding on objection to arbitration agreement, and the Reporting Mechanism of the PRC courts in regard to deciding on arbitration-related matters.
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Hiroshi, Oda. "7 Arbitration Procedure and Assistance and Control by the Court." In Russian Arbitration Law and Practice. Oxford University Press, 2020. http://dx.doi.org/10.1093/law/9780198712442.003.0007.
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This chapter focuses on the arbitration procedure. The Russian Law on International Commercial Arbitration does not contain detailed provisions on the procedure of arbitration as is the case with the UNCITRAL Model Law. Parties may freely agree on the procedure of arbitration provided that the agreement is compatible with the Law on International Commercial Arbitration. In the absence of such an agreement, the arbitration tribunal may conduct arbitration as they find adequate, including deciding on the admissibility, relativity, and significance of evidence. Therefore, details of the procedure are determined by the institutional rules. The fundamental principle of arbitral procedure is the equality of the parties. Each party must be given every possibility of presenting their own case. The chapter then looks at the provisions on the assistance and control of arbitration by the court introduced by the 2015 Reform.
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Martin F, Gusy, and Hosking James M. "Part I Commentary on the ICDR International Rules, 30 Article 30—Time, Form, and Effect of the Award." In A Guide to the ICDR International Arbitration Rules. Oxford University Press, 2019. http://dx.doi.org/10.1093/law/9780198729020.003.0031.
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This chapter explores Article 30 of the ICDR Rules, which prescribes the basic requirements for the time, form, and effect of any ICDR arbitral award. The Article does not provide a comprehensive list of requirements for a valid award; rather, it prescribes certain general minimum standards, while also giving some deference to the potential application of the parties’ agreement and the specific demands of the law at the place of arbitration or where enforcement is sought. The text of Article 30 received a number of revisions during the 2014 amendments to the ICDR Rules. Many of these revisions were aimed at streamlining and internationalizing the language, but others incorporated existing ICDR practices such as review of the draft award by the ICDR or expanded the previous provisions such as establishing a deadline by which the award must be rendered.
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Tiong Min, Yeo. "Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 35 Singapore: Singaporean Perspectives on the Hague Principles." In Choice of Law in International Commercial Contracts. Oxford University Press, 2021. http://dx.doi.org/10.1093/law/9780198840107.003.0035.
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This chapter describes Singaporean perspectives on the Hague Principles. Party autonomy is recognized as a very important principle in the private international law of Singapore. The primacy given to the role of party autonomy is evidenced by the adoption of the New York Convention and UNCITRAL Model Law for international arbitration, the adoption of the Convention on Choice of Court Agreements for international litigation, and the palpable support of the UNCITRAL Convention on International Settlement Agreements Resulting from Mediation. Most of private international law in Singapore is sourced in judge-made law. In the absence of direct Singapore authority, Singapore courts have traditionally looked to English case law for guidance, but increasingly, the courts have looked to the laws of other jurisdictions, and indeed international instruments which do not have binding force in Singapore law. Given the level of sophistication of existing common law contract choice of law rules, it is unlikely that Singapore will engage in radical law reform. However, it is likely that the Singapore courts will continue to look to the Hague Principles for guidance in areas where the common law is unclear or where there is a gap or strong imperative for change.
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Natalie, Klein. "Part VIII Compliance, Implementation, and Effectiveness, Ch.60 International Environmental Law Disputes Before International Courts and Tribunals." In The Oxford Handbook of International Environmental Law. Oxford University Press, 2021. http://dx.doi.org/10.1093/law/9780198849155.003.0060.
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This chapter examines how international environmental law (IEL) disputes are resolved before international courts and tribunals, addressing when parties will decide to litigate an IEL dispute as opposed to utilizing another form of dispute settlement. Assuming there is reason to pursue adjudication or arbitration, it looks at questions of jurisdiction. The chapter also considers preliminary matters that emerge in these cases, notably questions of standing and whether provisional measures are needed and may be secured before an international court or tribunal. It then turns to substantive matters, but only in the context of presentation of the case in terms of evidence and use of experts. Finally, the chapter assesses the available reparations in the resolution of IEL disputes before international courts and tribunals. Ultimately, considerable progress may be noted in respect of the use of international courts and tribunals for IEL disputes, but it is prudent to observe that in this area of international law, preventing the emergence of IEL disputes is ultimately more important than ex post facto responses to environmental damage.
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Merkin, Robert, and Séverine Saintier. "5. Intention to be legally bound, formalities, and capacity to contract." In Poole's Textbook on Contract Law, 170–94. Oxford University Press, 2019. http://dx.doi.org/10.1093/he/9780198816980.003.0005.
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Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. This chapter examines the requirement that there must be an intention to create legal relations and specific requirements of form, such as writing, for an agreement to be enforceable as a legally binding contract. Traditionally, this intention to create legal relations is determined objectively using two presumptions that can be rebutted on the evidence. First, it is presumed that there was no intention to be legally bound in the context of social or domestic agreements. Second, it is presumed that the parties to commercial agreements intended to be legally bound unless there are clear words indicating the opposite, such as the existence of an honour clause. In addition, some contracts require particular formalities to be binding. The chapter outlines some examples of these and discusses the consequences of non-compliance with the formality requirements. It also considers the capacity rules in contract (that is, a party’s ability in law to contract) and the effect of incapacity on a contract, focusing on contracts made by minors (persons below eighteen years old). The chapter concludes by discussing electronic signatures and the implications of e-commerce for formality requirements in contracts.
Conference papers on the topic "Form and evidence of the arbitration agreement"
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Santos, Hortense, Rui Dias, Paula Heliodoro, and Paulo Alexandre. "TESTING THE EMPIRICS OF WEAK FORM OF EFFICIENT MARKET HYPOTHESIS: EVIDENCE FROM LAC REGION MARKETS." In Fourth International Scientific Conference ITEMA Recent Advances in Information Technology, Tourism, Economics, Management and Agriculture. Association of Economists and Managers of the Balkans, Belgrade, Serbia, 2020. http://dx.doi.org/10.31410/itema.2020.91v.
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The new coronavirus disease (Covid-19) evolved quickly from a regional health outbreak to a global collapse, stopping the global economy in a unprecedented way, creating uncertainty and chaos in the financial markets. Based on these events, it is intended in this paper to test the persistence of profitability in the financial markets of Argentina, Brazil, Chile, Colombia, Peru and Mexico, in the period between January 2018 to July 2020. In order to perform this analysis where undertaken different approaches in order to analyze if: (i) the financial markets of Latin America are efficient in their weak-form during the global pandemic (Covid-19)? ii) If so, the persistent long memories cause risks between these regional markets? The results suggest that the returns don’t follow the i.i.d. hypothesis, from dimension 2, reinforcing the idea that returns of stock indexes have a non-linear nature or a significant non-linear component, exception made to the Argentina market, which was expected in virtue of the Ljung-Box (with the return squares) test results, and ARCH-LM. Corroborating the exponents Detrended Fluctuation Analysis (DFA), indicate the presence of persistent long memories, namely into the following markets: Colombia (0.72), Chile (0.66), Brazil (0.58) and Peru (0.57). The Argentina market does not reject the random walk hypothesis, while the Mexican market suggests some anti-persistence (0.41). This situation has implications for investors, once that some returns can be expected, creating arbitration opportunities and abnormal income, contrary to the supposed from the random walk hypothesis and information efficiency. The t-test results of the heteroscedasticity form the two samples suggest that there is no risk transmission between these regional markets, with the exception to the BOVESPA / BOLSAA MX markets, that is, the existence of persistent long memories in the returns does not imply the risk transmission between markets. These finds allow the creation of strategies of diversification inefficient portfolios. These conclusions also open space for the market regulators to implement measures that guarantee a better informational information of these regional markets.
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Santos, Hortense, Rui Dias, Paula Heliodoro, and Paulo Alexandre. "TESTING THE EMPIRICS OF WEAK FORM OF EFFICIENT MARKET HYPOTHESIS: EVIDENCE FROM LAC REGION MARKETS." In Fourth International Scientific Conference ITEMA Recent Advances in Information Technology, Tourism, Economics, Management and Agriculture. Association of Economists and Managers of the Balkans, Belgrade, Serbia, 2020. http://dx.doi.org/10.31410/itema.2020.91.
Full textAbstract:
The new coronavirus disease (Covid-19) evolved quickly from a regional health outbreak to a global collapse, stopping the global economy in a unprecedented way, creating uncertainty and chaos in the financial markets. Based on these events, it is intended in this paper to test the persistence of profitability in the financial markets of Argentina, Brazil, Chile, Colombia, Peru and Mexico, in the period between January 2018 to July 2020. In order to perform this analysis where undertaken different approaches in order to analyze if: (i) the financial markets of Latin America are efficient in their weak-form during the global pandemic (Covid-19)? ii) If so, the persistent long memories cause risks between these regional markets? The results suggest that the returns don’t follow the i.i.d. hypothesis, from dimension 2, reinforcing the idea that returns of stock indexes have a non-linear nature or a significant non-linear component, exception made to the Argentina market, which was expected in virtue of the Ljung-Box (with the return squares) test results, and ARCH-LM. Corroborating the exponents Detrended Fluctuation Analysis (DFA), indicate the presence of persistent long memories, namely into the following markets: Colombia (0.72), Chile (0.66), Brazil (0.58) and Peru (0.57). The Argentina market does not reject the random walk hypothesis, while the Mexican market suggests some anti-persistence (0.41). This situation has implications for investors, once that some returns can be expected, creating arbitration opportunities and abnormal income, contrary to the supposed from the random walk hypothesis and information efficiency. The t-test results of the heteroscedasticity form the two samples suggest that there is no risk transmission between these regional markets, with the exception to the BOVESPA / BOLSAA MX markets, that is, the existence of persistent long memories in the returns does not imply the risk transmission between markets. These finds allow the creation of strategies of diversification inefficient portfolios. These conclusions also open space for the market regulators to implement measures that guarantee a better informational information of these regional markets.
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Taylor, Estelle. "Investigating the Perception of Stakeholders on Soft Skills Development of Students: Evidence from South Africa." In InSITE 2016: Informing Science + IT Education Conferences: Lithuania. Informing Science Institute, 2016. http://dx.doi.org/10.28945/3417.
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[The final form of this paper was published in the journal Interdisciplinary Journal of e-Skills and Lifelong Learning.] Soft skills are becoming increasingly important and will be critical for success in the Information Systems profession. Employers complain about a lack in soft skills among graduates from tertiary education institutions. No agreement exists about what these skills actually are, which are of importance, and how acquiring these soft skills should be approached in higher education. The aim of this paper is to research the perceptions of lecturers, industry, and students on soft skills development of students and to identify important soft skills that need to be developed. The paper starts with a problem statement emphasizing the importance of soft skills and the possible lack thereof. This is followed by a literature review, a description of the methodology followed for this research, the results, conclusion, and the references. The research was done at a university in South Africa. Questionnaires consisting of open questions were distributed to lecturers, industry, and students respectively, and qualitative analysis was done on the results. Results show that stakeholders feel that soft skills of students are not developed adequately, that there is some uncertainty about who should be responsible for developing soft skills, and that the development of soft skills is seen as a difficult task. A list is compiled of the most important soft skills according to literature, lecturers, industry, and students. This list can be used in further research on the soft skills of IT-students. Recommendations are made for the teaching and learning of soft skills.
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Hedjazi, Lotfi, Christophe L. Martin, Sofiane Guessasma, Guy Della Valle, and Rémy Dendievel. "Application of Discrete Element Simulation to the Crushing of a Food Biopolymer Foam for Mastication Modelling." In ASME 2012 11th Biennial Conference on Engineering Systems Design and Analysis. American Society of Mechanical Engineers, 2012. http://dx.doi.org/10.1115/esda2012-82953.
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The fragmentation behaviour of brittle airy cereal foods is studied both numerically and experimentally. The food item is subjected to severe compression until densification stage. Experimental evidence of typical cellular material behaviour is pointed out by elasticity, cell collapse and densification regimes. Using an accurate description of the cellular structure determined by X-ray tomography, a numerical approach based on discrete element method is proposed in order to better explain the resulting fragmentation. The approach allows to reproduce the deformation stages and predicted results show good agreement with experimental mechanical responses, in terms of maximum force. Moreover, large size fragments are found to form as a consequence of small rupture events.
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Gallego, Guillermo, Anthony Yezzi, Francesco Fedele, and Alvise Benetazzo. "A Variational Wave Acquisition Stereo System for the 3-D Reconstruction of Oceanic Sea States." In ASME 2011 30th International Conference on Ocean, Offshore and Arctic Engineering. ASMEDC, 2011. http://dx.doi.org/10.1115/omae2011-49061.
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We propose a novel remote sensing technique that infers the three-dimensional wave form and radiance of oceanic sea states via a variational stereo imagery formulation. In this setting, the shape and radiance of the wave surface are minimizers of a composite cost functional which combines a data fidelity term and smoothness priors on the unknowns. The solution of a system of coupled partial differential equations derived from the cost functional yields the desired ocean surface shape and radiance. The proposed method is naturally extended to study the spatiotemporal dynamics of ocean waves, and applied to three sets of video data. Statistical and spectral analysis are carried out. The results shows evidence of the fact that the omni-directional wavenumber spectrum S(k) of the reconstructed waves decays as k−2.5 in agreement with Zakharov’s theory (1999). Further, the three-dimensional spectrum of the reconstructed wave surface is exploited to estimate wave dispersion and currents.
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Niutanen, Valtteri, and Kevin Otto. "Field Isolation As a Basis for Modular Product Architecture." In ASME 2017 International Design Engineering Technical Conferences and Computers and Information in Engineering Conference. American Society of Mechanical Engineers, 2017. http://dx.doi.org/10.1115/detc2017-67751.
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Research into product modularity has created methods to partition a product system in to modules, including DSM algorithms to minimize various within- or between-module connectivity assumptions, as well as heuristic methods for combining functions into common modules, including dominant flow, convert-transmit, repeated elements, and branching flows. We here re-examine these methods in view of flows between field potentials. Fields are spatially defined scalar functions representing temperature, pressure, voltage, etc., each with associated flows such as heat, fluid, current, etc. It is hypothesized that isolation of elements to desired field values can form a physical basis for module definition. Product functional descriptions were examined from the literature. Those found sufficiently detailed with function structures, module definitions, part lists and subassembly definitions were studied here. Within these examples, there were 183 functions grouped into 51 modules. Of these, a statistically significant 67% of the modules had boundaries which isolated a field. For example, all elements within the module were at a high temperature and all elements outside the module were at a low temperature. Such agreement between actual modularity and field isolation provides evidence that an effective module definition strategy is to use field boundaries to separate into modules the necessarily high and low field values in the product structure. A second analysis considered how desired flows are designed to cross field boundaries. In 84% of the cases of flows crossing field boundaries, specific field separation functions were defined. Care was taken through specific functionality provision to ensure field boundary isolation. In summary, we find containing fields within a product can form a physics based guideline for defining product modularity.