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Books on the topic 'Form and evidence of the arbitration agreement'

Author: Grafiati

Published: 4 June 2021

Last updated: 5 February 2022

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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.

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David, Scorey, Geddes Richard, and Harris Chris. Part III Dispute Resolution Under the Bermuda Form, 20 Preparation for and Conduct of the Hearing. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198754404.003.0020.

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This chapter deals with the procedural issues relating to the hearing of a Bermuda Form arbitration itself. These include organizing a venue for the hearing, preparation of witness statements, the logistics of presenting witnesses, the preparation of experts' reports, the presentation of written pre-hearing submissions, and certain other issues that frequently arise in the course of an arbitral hearing, including the practical treatment of New York law in the usual form of a Bermuda Form case. After all the evidence has been adduced, and where time permits, a tribunal will sometimes invite each side to present written closing arguments. In other cases, no written closings are served and the parties simply proceed to address the tribunal with oral argument on the applicable law and as to the findings that the tribunal should make, based on the evidence heard by the tribunal.

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Lawrence, Collins, and Dhar Siddharth. 12 Remedies—Interim Measures. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780199687862.003.0012.

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This chapter discusses the power of a tribunal to grant interim relief and the standards applicable to the grant of interim relief. Parties may seek procedural interim protections in international arbitration to prevent the arbitral process from being undermined by a recalcitrant party, or to further the efficient disposition of the dispute. Common procedural protections that might be available from an arbitral tribunal include: anti-suit injunctions, to restrain a party to the arbitration agreement from bringing or pursuing competing proceedings in breach of the arbitration agreement; orders to protect the confidentiality of the proceedings; and orders to preserve evidence or to disclose important or relevant documents.

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Markus S, Rieder, and Kreindler Richard. 3 The Arbitral Tribunal. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780199676811.003.0003.

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This chapter examines the arbitral tribunal which resolves dispute by way of arbitration. It discusses the number of arbitrators, the procedure of appointing arbitrators, the selection of arbitrators, the challenge, termination of the office and replacement of arbitrators, as well as the arbitrator agreement — a topic that has more attention in Germany than in other jurisdictions. The study is important as the arbitral tribunal is one of the most important strategic steps in any arbitration. In most cases, the parties and their counsel to believe that picking the right panel is a preeminent precondition for achieving the desired outcome. The chapter describes how under German law, the principles of independence and impartiality of an arbitration are non-derogable cornerstones of any arbitral proceedings. Essentially, they form part of the German procedural ordre public which are considered indispensable constitutional requirements in order for arbitral proceedings to be equivalent to state court litigation.

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John V H, Pierce, Carter Janet R, and Cinotti David N. 13 Challenging and Enforcing International Arbitral Awards in New York. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198753483.003.0014.

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This chapter addresses the key issues involved in challenging and enforcing international arbitral awards in New York. First, it looks at the procedural issues that a party must consider when seeking to challenge or enforce an international arbitral award in New York. These include, among other things, the form, timing, and service of the application, and the satisfaction of subject-matter jurisdiction, personal jurisdiction, and venue requirements. Second, this chapter examines the substantive grounds available to a party that seeks to vacate, or resist recognition and enforcement of, an international arbitral award in New York. Depending on the circumstances, including the jurisdiction in which the award was made and the terms of the parties’ arbitration agreement, these grounds may be those set forth in the FAA, the New York Convention, and the CPLR.

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Martin, Hunter. Part XIV Final Reflections and Looking Ahead, 37 Recollections of Past Events and Reflections on Future Trends. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198783206.003.0038.

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This chapter presents the author’s recollections of his personal experiences involving the Chartered Institute of Arbitrators and, more generally, the world of arbitration. He describes how he became a member of the Institute in the mid 1960s. He discusses the taking of evidence by arbitral tribunals, saying that the issue remains important because most commercial disputes are decided by arbitral tribunals based on material facts, rather than on an erudite analysis of the transaction agreement, or a microscopic evaluation of the provisions of the applicable national law. He also believes that arbitral tribunals must do their best to ensure that the costs incurred by the parties are reasonable. The Institute has the duty to educate its members and students on the importance of cost control, and to use their discretionary powers to allocate the costs of legal representation (and other costs) in their awards in a way that discourages excessive expenditure by the eventual winning party.

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Eckert, Amy E. Cui Bono. Oxford University Press, 2017. http://dx.doi.org/10.1093/oso/9780198801825.003.0012.

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The emergence of a new market for private force has altered many aspects of war fighting, including those pertaining to victory and post-conflict settings. While some literature suggests that private military companies (PMCs) can sometimes lead parties to negotiate a peace agreement more quickly, the value of this victory is open to debate. Empirical evidence and case studies of civil wars explored in this chapter suggest that the peace achieved through the use of PMCs is unlikely to endure or to bring substantial improvement to the lives of the most vulnerable victims of war—that is, instead of a positive peace, PMCs achieve a negative peace. Moreover, states often mortgage their natural resources to PMCs as a form of payment. In other words, both the war and the victory secure considerable benefits for PMCs and accomplish little for the civilian populations within war-torn states.

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