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Dissertations / Theses on the topic 'International Arbitration Law'
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1
Hrle, Jelena. "International arbitration and competition law." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 2000. http://www.collectionscanada.ca/obj/s4/f2/dsk2/ftp03/MQ64281.pdf.
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Hrle, Jelena. "International arbitration and competition law." Thesis, McGill University, 1999. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=30305.
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Arbitrating of competition law claims has generated a substantial tension between the policies served by promoting international arbitration and those protected by the national competition law. Despite the legal tension and unpredictability associated with arbitrating competition law issues, the arbitrator should, in principle, resolve such issues. This study analyses the main concerns when arbitrating competition law issues, such as jurisdiction, choice of law and, in particular, the position of national jurisdiction regarding the enforcement of the award conflicting national competition law.This study proposes the functional approach to choice of law problems according to which the arbitrator will decide on the applicable competition law bearing in mind the content of mandatory norm, its connection with a dispute and the consequences of its application and non-application. In that regard, this thesis will examine how an arbitrator should address the extraterritorial effect of the competition law. The study will suggest that if the competition law policies of states connected with a dispute serve opposing and conflicting goals, the arbitrator should, in order to preserve his/her neutral function refuse to decide whose competition policy is "better" and should consequently decline jurisdiction.
3
Fathallah, Raed M. "International law in investment agreement arbitration." Thesis, University of Oxford, 2007. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.439724.
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4
Dalentoft, Tomas, and Magnus Toftgård. "International Arbitration : Arbitration Agreements and the writing requirement." Thesis, Jönköping University, JIBS, Commercial Law, 2009. http://urn.kb.se/resolve?urn=urn:nbn:se:hj:diva-7471.
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Abstract
As international trade is constantly increasing, the number of disputes between international parties is greater than ever. In view of the fact that it is difficult to get court judgments recognized and enforced, arbitration has gained a great foothold in international commercial disputes. The leading international legal framework for recognition and enforcement of arbitral awards is the New York Convention of 1958 with 142 Member States as of today. It simplifies recognition and enforcement of arbitral awards in foreign countries. Nevertheless, certain criterions are required to be fulfilled and a much-debated criterion is the writing requirement for arbitration agreements.
The writing requirement is found in Article II(2) of the New York Convention and it stipulates that an arbitration clause or an arbitration agreement must be signed by the parties or contained in an exchange of letters or telegrams to constitute a valid arbitration agreement, which is the foundation of a recognizable and enforceable arbitral award. The requirement in itself is clear, but the development of electronic communication and the fact that national courts interpret the writing requirement differently, leads to dissimilar requirements in various countries. Moreover, numerous new ways of how to conclude contracts have been established during the 50 years that has passed since the adoption of the New York Convention and the ever increasing number of disputes has questioned the function of the writing requirement. The UNCITRAL has, by adopting a model law, tried to accomplish a uniform interpretation and establish what it takes to fulfill the writing requirement. The starting point for the work of the UNCITRAL was to modify national arbitration legislation and thus reach the objective of harmonizing the writing requirement.
The thesis undertakes an international outlook in three countries, Australia, Italy and Sweden. These countries are all Member States of the New York Convention but there are great differences in their legislation. Sweden imposes no writing requirement and Italy has applied a very restrictive interpretation. Australia has incorporated the UNCITRAL Model Law. The international outlook illustrates how the interpretation depends on national arbitration legislation and attitude towards the writing requirement.
An analysis of the current general legal context shows a weakening threshold for fulfillment of the writing requirement. It is also evident that the writing requirement is not in line with how international trade is practiced today. The writing requirement frequently constitutes a formalistic problem regarding conclusion of contracts, as it comprise a requirement with-out function. In addition to this, the attempts of the UN have failed to eliminate uncer-tainty and the divergence in interpretation. To reach a uniform interpretation, an immense overhaul of the New York Convention is needed, alternatively that additional States adhere to the UNCITRAL Model Law and thus eliminate the national differences of today.
Sammanfattning
En ständigt ökande internationell handel leder till en ökning i antalet tvister mellan parter från olika länder. Då nationella domslut är svåra att få erkända och verkställda i en främmande stat har skiljedomsförfaranden ökat i antal. Regelverket kring att få en skiljedom erkänd och verkställd i en främmande stat utgörs främst av New Yorkkonventionen från 1958 med 142 fördragsslutande stater till dags dato. New Yorkkonventionen möjliggör att en internationell skiljedom lättare kan erkännas och verkställas i en främmande stat. Dock måste vissa kriterier vara uppfyllda och ett av de mest omdebatterade och domstolsprövade kriterierna är det skriftliga formkravet för skiljeavtal.
Skriftlighetskravet regleras i Artikel II(2), New Yorkkonventionen och påvisar att skiljeavtalet måste vara undertecknat av parterna eller inkluderat i brev- eller telegramväxling för att vara giltigt. Ett giltigt skiljeavtal formar grunden för en verkställbar skiljedom. Kravet i sig är relativt tydligt men med teknologins frammarsch och det faktum att nationella domstolar tolkar skriftlighetskravet olika har kraven för att uppnå skriftlighetskravet skiftat från land till land. Framförallt har olika sätt att sluta avtal tillkommit under de 50 år som New Yorkkonventionen har existerat och även det ökande antalet internationella skiljedomsförfaranden har ifrågasatt grunden för skriftlighetskravet. UNCITRAL har genom en modellag om kommersiella skiljeförfaranden försökt skapa enhetlighet om hur skriftlighetskravet skall tolkas och vad som krävs för att uppnå kravet. Utgångspunkten för UNCITRAL’s arbete har varit att förändra nationell lagstiftning och därmed uppnå målet om harmonisering av skriftlighetskravet.
Uppsatsen gör en internationell utblick i tre länder, Australien, Italien och Sverige. De tre länderna är fördragsslutande stater till New Yorkkonventionen men deras nationella lagstiftning skiftar markant. Sverige påvisar inte något skriftlighetskrav för skiljeavtal och Italien har tolkat skriftlighetskravet restriktivt. Australien har fullt ut inkorporerat den modellag som UNCITRAL har utarbetat gällande kommersiella skiljeförfaranden. Utblicken visar även i flera rättsfall hur olika tolkningen av skriftlighetskravet blir beroende på den nationella lagstiftningen och inställningen till skriftlighetskravet.
En analys av rättsläget påvisar att tröskeln för att uppnå skriftlighetskravet tenderar att luckras upp. Det framkommer även att skriftlighetskravet inte är i fas med hur internationell handel praktiseras idag. Skriftlighetskravet är ofta ett formalistiskt problem vad gäller avtalsslut och konstituerar ett krav utan funktion. Därtill har de försök som gjorts från överstatligt håll misslyckats med att undanröja osäkerheten och skiftningar i tolkningen. För att uppnå enhetlighet krävs en genomarbetning av New Yorkkonventionen, alternativt att fler stater anammar UNCITRAL’s modellag och därmed undanröjer de nationella olikheter som existerar idag.
5
Ilieva, P. "Judicialisation of international commercial arbitration." Thesis, City, University of London, 2016. http://openaccess.city.ac.uk/17891/.
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It has been increasingly argued that international commercial arbitration is stripping off its intrinsic features of an alternative dispute resolution method and turning into a mechanism that is almost indistinguishable from litigation. The development describing the metamorphosis of international commercial arbitration into a method that is very similar in process and substance to national litigation is referred to as the judicialisation of international commercial arbitration. The focus of this research is the process of judicialisation. The thesis questions whether it exists at all and, if yes, to what extent it has permeated both international arbitration proceedings and arbitral decision-making. While attempting to answer those questions other salient considerations are raised, such as: • Which characteristics of international commercial arbitration are fundamental for this method of dispute resolution and should remain intact; • What are the driving forces of the process of judicialisation; • Is the judicialised approach entirely consistent with the benefits of international commercial arbitration and to what extent? The ultimate objective of this thesis is to answer the question whether the judicialisation of international commercial arbitration is a positive development and thus be encouraged. Where negative implications are recognised, an attempt is made to identify the causes of the judicialisation process and offer solutions, if attainable.
6
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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7
Yesilirmak, Ali. "Provisional measures in international commerical arbitration." Thesis, Queen Mary, University of London, 2003. http://qmro.qmul.ac.uk/xmlui/handle/123456789/1816.
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Interim protection of rights (through provisional, including protective, measures) is as important as the final protection of those rights. This thesis examines several problems and uncertainties surrounding provisional measures in international commercial arbitration. Those problems and uncertainties influence the effectiveness of arbitration; thus, they constitute a threat to the future of arbitration. The thesis aims to identify, analyse, and offer solutions to those problems and uncertainties. The thesis initially examines the roots and evolution of the concepts of arbitral powers to grant provisional measures and court assistance to arbitration. This examination highlights the roots of the problems and uncertainties and demonstrates how the approach towards provisional measures shifted, in due course of time, from judicial authorities' exclusive power to arbitrators' power to grant those measures and how the courts' role regarding interim protection has evolved into assistance. It further deals with the forum to seek provisional measures mainly to demonstrate that today an arbitrator or another party-determined authority is and should be the natural judge regarding interim protection of rights and that the courts' assistance should be restricted to ensure the effectiveness of arbitration. It, in addition, investigates complementary mechanisms to arbitration for providing interim protection in order to show that such mechanisms enhance the effectiveness of arbitration for a period prior to the appointment of an arbitrator. The thesis also endeavours to establish the standards of procedure and principles in regard of arbitral provisional measures, for instance, form, requirements and types of arbitral provisional measures. The establishment of these standards and principles makes arbitration a more consistent and predictable dispute resolution mechanism. It thus boosts the effectiveness of arbitration. It finally discusses the enforcement of arbitral provisional measures to show that some of these measures are effective without any coercion and that some others, however, necessitate the use of coercive powers, which are lent by judicial authorities.
8
Conde, e. Silva Gui J. "Transnational public policy in international arbitration." Thesis, Queen Mary, University of London, 2007. http://qmro.qmul.ac.uk/xmlui/handle/123456789/1717.
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Arbitration tribunals rely on public policy principles to exclude or determine the applicable law. At times, the notion of public policy will contain fundamental yardsticks recognised by the world community at large. In such cases public policy may be called transnational or truly international. The thesis expounds the notion and content of transnational public policy as applied by international tribunals. This objective is met by exploring the method, functions and purpose of transnational public policy in international arbitration. The opening chapter sheds light on the origins and concept of public policy and the different levels it has been applied by international tribunals and national courts. It suggests a criteria for the distinction between domestic, domestic-international, regional and transnational public policy. The thesis then gives an in depth analysis of the origins and notion of transnational public policy. It suggests that international tribunals have relied on transnational public policy in their awards and proposes a method to determine its content and sources. Such method is then applied to deduct the content of transnational public policy from decided arbitration awards. The thesis shows that transnational public policy can be relevant at three different stages in international arbitration. At the outset of the proceeding, where the arbitrators determine their jurisdiction; during the arbitration, where it controls the procedure applicable in the arbitration; or at the stage of drafting the final award, where it determines fundamental substantive rules relied upon by the tribunal.
9
Al-Subaihi, Abdulrahman A. I. "International commercial arbitration in Islamic law, Saudi law and the model law." Thesis, University of Birmingham, 2004. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.497341.
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10
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.
11
Manton, Ryan. "Necessity in international law." Thesis, University of Oxford, 2016. https://ora.ox.ac.uk/objects/uuid:0ee2dd8e-6eac-4364-b538-21ae5eb932a2.
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This thesis examines the role of necessity, as a defence to State responsibility, in international law. Necessity provides a State with a defence to the responsibility that would otherwise arise from its breach of an international obligation where the only way that State can safeguard an essential interest from a grave and imminent peril is to breach an obligation owed to a less imperilled State. It is a defence that has generated a considerable body of jurisprudence in recent years and yet it continues to be plagued by a perception that States have abused it in the past and by fears that States will abuse it in the future - 'necessity', declared the German Chancellor on the eve of World War I, 'knows no law'. This thesis contends that this perception is flawed and these fears are unfounded. The main claim of this thesis is that necessity operates as a safety valve within the law of State responsibility that mediates between the binding quality of international obligations and the harsh consequences that may follow from requiring compliance with those obligations at all costs. This safety valve promotes the reasonable application of international law and it recognises that international law must sometimes bend so that it does not break. The thesis bears out this claim by contending that necessity has a stronger pedigree than is commonly appreciated and that it is solidly grounded in, and its contours are constrained by, customary international law. It charts those contours by first examining the scope of the obligations to which necessity may provide a defence, which includes examining how necessity relates to fields of law that contain their own safety valves regulating emergency situations. It then proceeds to examine the conditions that a State must satisfy in order to establish necessity and it finally examines the consequences of necessity, including for the stability of international law. The thesis concludes that any suggestion that 'necessity knows no law' has no place in international law today.
12
Sadafi-Chaghooshi, Farshad. "Is international commercial arbitration an autonomous legal system?" Thesis, McGill University, 2014. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=121482.
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In recent decades, the nature of international commercial arbitration has been transformed from a method of dispute resolution to an autonomous legal system. Globalization and a shift of power from states to private actors have resulted in the emergence of an international arbitration community that eventually produced this kind of transition. This movement has generated a dynamic discussion over the legality and systematicity of the arbitral legal system. By applying various legal theories, scholars of different legal systems have analyzed the legality of the arbitral legal system. A few scholars have advocated the concept of this system based on a transnational legal positivism theory. In contrast, others, because of a lack of essential qualities of law and structural deficiencies in international arbitration, refuse to recognize it as an autonomous legal system. The main objective of the present work is to study the major legal theories about the legality and systematicity of international commercial arbitration, and then to take an overview of the adverse and advantageous consequences of applying the concept of the arbitral legal system.Au cours des dernières décennies, l'arbitrage commercial international a subi de grandes transformations : longtemps utilisé comme simple méthode de résolution des différends internationaux, il est en voie de devenir un système de droit autonome. Avec la globalisation des échanges et des activités humaines et la décentralisation du pouvoir des États vers des acteurs privés, une nouvelle catégorie d'arbitres internationaux a fait son apparition, de nouveaux arbitres qui deviennent à leur tour des agents de changement. La pluralité de leurs opinions a poussé ces nouveaux acteurs à se questionner sur la viabilité à long terme de la mise en place d'un nouvel ordre juridique arbitral. Diverses théories juridiques mises de l'avant par des experts issus de différents domaines du droit ont permis d'en étudier la légalité et la systématicité. Ce nouvel ordre juridique a ses défenseurs et ses détracteurs. Certains le défendent en invoquant la théorie positiviste du droit basée sur les règles de droit transnationales. D'autres refusent de le considérer comme un système autonome parce certaines règles de droit essentielles n'y sont pas définies et qu'il existe des lacunes structurelles flagrantes en arbitrage international. Ce sont là quelques-unes des grandes questions qui seront débattues dans le présent ouvrage. L'auteur y fera d'abord l'analyse des principaux courants théoriques traitant de la légitimité et de la systématicité de l'arbitrage commercial international et de la mise en place d'un régime juridique dans ce domaine, pour se concentrer ensuite sur les avantages et les désavantages que sa reconnaissance en tant que système de droit autonome pourrait représenter.
13
Mbithi, Peter Mutuka. "International commercial arbitration in Kenya: is arbitration a viable alternative in resolving commercial disputes in Kenya?" Master's thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/12893.
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Includes bibliographical references.The purpose of this paper was to determine whether arbitration is a viable alternative for resolving commercial disputes in Kenya. More so, because Kenya has adopted the UNCITRAL Model law, 1985 and revised the same in line with the model law, 2006. Furthermore, Kenya has set up the Nairobi Centre for International Arbitration, with an aim to promote and improve the conducting of arbitrations in the country. To answer the research question, the writer looked at the history of the arbitration law in Kenya, how the communities living in Kenya settled their disputes. In doing so, the writer looked at the dispute resolution mechanisms of the Kamba, the Kikuyu and the Kipsingis, all communities living in Kenya before the country was colonised by the British. We also looked at how the law of arbitration was introduced. Having established the basis of the Arbitration law in the country, the writer canvassed on the development of the law since independence in 1963 to the current situation. This included the support recently given to alternative dispute resolution mechanisms by the Constitution of Kenya as well as the establishment of the Nairobi Centre for International Arbitration. The writer also gave an overview of the role of the court in arbitration in Kenya, giving instances and examples at which the law envisages the involvement of the court in the arbitration process. Court supervised arbitration was also canvassed. The paper went on to look at the situation of commercial arbitration in two other developing countries in Africa, South Africa and Mauritius. It was found that Mauritius, which enacted its International Arbitration Act in 2008, has moved decisively to market itself as a viable, safe and prospective place of international commercial arbitration. It was also established that South Africa has not been able to review its Arbitration law, which was enacted in 1965. Last the writer looked at the opportunities, the benefits and the challenges that face arbitration in Kenya today. The research was limited by the fact that it was not possible to write about the practice of all communities in Kenya and therefore the three chosen were taken as samples to represent all the others.
14
Steingruber, Andrea Marco. "Notion, nature and extent of consent in international arbitration." Thesis, Queen Mary, University of London, 2009. http://qmro.qmul.ac.uk/xmlui/handle/123456789/415.
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Arbitration is a consensual and private mechanism of dispute resolution which leads to an enforceable arbitral award. In the traditional field of commercial arbitration the agreement to arbitrate is considered to be the cornerstone of arbitration. On the other hand, in the international context, arbitration has become increasingly used in other areas, like investment arbitration and sport arbitration, where the consensual nature of arbitration appears to be different. At the beginning of the study it will be underlined that, when speaking about the consensual nature of arbitration, one needs to differentiate between consensual as one of the essential criteria for arbitration’s qualification and consent as a condition for the validity of the arbitration agreement. This differentiation is especially important in sport arbitration where, between the athletes and sport organisations, there is often induced consent rather than bargained consent. By sustaining that the consensual character of arbitration needs to be differentiated, but not abandoned, the thesis clearly takes a contractual, or better, a consensual approach. It is preferable to speak of a consensual approach, because the agreement to arbitrate does not always take the form of an arbitration agreement in the traditional sense. This is particularly the case in investment arbitration. This thesis is a comparative study. However, not only a comparison of national laws and different arbitration rules will be undertaken, but the thesis will also consider the evolution of arbitration by discussing the implications that evolution has had on the perception of the consensual character of arbitration. Moreover, and above all, the main body of the thesis will be dedicated to a comparison focused on the consent issues of the three main areas where arbitration is nowadays used in an international context: commercial arbitration, investment arbitration and sport arbitration. It will be stressed that, although already in the classical area of commercial arbitration, the structures of arbitrations may be of different types, ranging from bi-party situations to multiparty scenarios, and might play a role when considering the consensual nature of arbitration, this becomes even clearer when one analyses the other fields of arbitration. The thesis then also takes into account that, in the various phases of the arbitral process, the expectations with regard to the consensual character of arbitration may be different. In the thesis it will be argued that the reason the consensual nature of arbitration evolved over time, and the reason that it is different among the various fields of arbitration, might be seen in the fact that there is an inherent tension between the contractual and the jurisdictional side of arbitration. In this situation of “inherent tension” consent may be perceived as being more or less present. Nevertheless, the “intensity” of consent does not affect the basically consensual character of arbitration. While the four traditional theories (jurisdictional, contractual, mixed/hybrid and autonomous) used to explain the juridical nature of arbitration focus rather on the relationship between State and arbitration, the thesis attempts to indicate other solutions which seem to be more able to explain the use of arbitration in the different areas/fields where arbitration is expected to resolve disputes.
15
Bahmany, Leyla. "Sustainable development of international arbitration: rethinking subject-matter arbitrability." Thesis, McGill University, 2013. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=117139.
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The discussion pertaining to the inarbitrability of public policy disputes has a long-standing position in arbitration law. To protect public interests, domestic legal systems imposed a general ban on the arbitration of public policy disputes. In 1985, however, the United States Supreme Court in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. removed antitrust disputes from the category of inarbitrable matters and marked a new phase in the history of inarbitrability. The general nature of Mitsubishi's reasoning affected other Western jurisdictions to remove the inarbitrability of public policy disputes in order to develop international arbitration. Mitsubishi's rationale and holding, therefore, can be considered to be pillars of the new approach to inarbitrability. This thesis critically analyzes Mitsubishi's reasoning and the record of the past three decades in light of case law and the views of prominent scholars. It draws a picture of the current situation of arbitrability in the United States, Canada, France and Belgium. The discussion explains that the removal of inarbitrability has resulted in an ineffective protection for public interests, which has caused dissatisfaction in certain sectors of society and may amount to formation of a radical view hostile to arbitration. The situation raises concerns as to whether the current development of arbitration will endure. This thesis borrows the term "sustainable development" from environmental law and economy, and applies it to international arbitration law. By redefining "sustainable development" according to the needs of international arbitration, this thesis provides a solution for developing arbitration without jeopardizing public policy interests. The solution balances private and public interests to achieve sustainable development in international arbitration.La discussion relative à l'inarbitrabilité des différends portant sur l'ordre public occupe une position de longue date en droit de l'arbitrage. Afin de protéger les intérêts du public, les systèmes juridiques nationaux interdisaient généralement l'arbitrage de différends portant sur des questions d'ordre public. En 1985, cependant, la Cour suprême américaine dans l'affaire Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. retira les différends pourtant sur le droit de la concurrence de la catégorie des questions inarbitrables, et marqua une nouvelle phase dans l'histoire de inarbitrabilité. Le caractère général des arguments soulevés dans l'affaire Mitsubishi a influencé d'autres pays occidentaux et ils retirèrent les différends portant sur l'ordre public des matières inarbitrables afin de développer l'arbitrage international. Par conséquent, les arguments formulés et la décision prise dans l'affaire Mitsubishi peuvent être considérés comme les piliers de la nouvelle approche de inarbitrabilité. Ce mémoire analyse l'argumentaire de l'affaire Mitsubishi et le bilan des trois dernières décennies, à la lumière de la jurisprudence et des points de vue d'éminents chercheurs. Il dresse un tableau de la situation actuelle de l'arbitrabilité aux Etats-Unis, au Canada, en France et en Belgique. L'exposé explique que la suppression de l'inarbitrabilité a donné lieu à une protection inefficace de l'ordre public, ce qui a provoqué l'insatisfaction dans certains secteurs de la société et pourrait résulter dans la formation d'un point de vue radical, hostile à l'arbitrage. La situation soulève des préoccupations quant à savoir si l'évolution actuelle de l'arbitrage durera longtemps. Ce mémoire emprunte le terme "développement durable" au droit de l'environnement et de l'économie, et il l'applique au droit de l'arbitrage international. En redéfinissant le terme "développement durable" en fonction des besoins de l'arbitrage international, ce mémoire propose une solution pour développer l'arbitrage sans mettre en péril les intérêts d'ordre public. Cette solution équilibre les intérêts privés et publics pour parvenir à un développement durable dans l'arbitrage international.
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Sasson, Monique. "Substantive law in investment treaty arbitration : the uneasy relationship of international law and municipal law." Thesis, University of Cambridge, 2009. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.611808.
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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.
18
Schaffstein, Silja. "The doctrine of Res Judicata before international arbitral tribunals." Thesis, Queen Mary, University of London, 2012. http://qmro.qmul.ac.uk/xmlui/handle/123456789/8665.
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There are currently no rules in international commercial arbitration law and practice assuring the coordination between (partial or final) arbitral awards and/or national court judgments rendered in identical or related cases. This lack of coordination is unsatisfactory, particularly in light of the ever-growing tendency of parties to submit their commercial disputes to international arbitration and the increasing complexity of international arbitration. Today, international commercial transactions and the disputes to which they give rise regularly involve multiple parties, contracts and issues. As a consequence, these disputes (or certain aspects of these disputes) are increasingly tried in multiple fora. In such circumstances, difficult issues regarding the res judicata effects of prior judgments or awards are likely to arise before international commercial arbitral tribunals. The central hypothesis underlying this research is that transnational principles of res judicata should be elaborated for international commercial arbitral tribunals. This solution is justified for several reasons. First, it is justified given the differences among domestic laws regarding res judicata and the difficulties surrounding the formulation of appropriate conflict-of-laws rules. Second, it avoids inappropriate analogies between international arbitration proceedings and litigation. Finally, the solution provides guidance and ensures a certain degree of fairness, certainty and predictability, which is expected by arbitration users. This PhD thesis seeks to achieve its aims in two stages: Part One examines the doctrine of res judicata in litigation, analysing the doctrine as applied in different domestic laws, as well as in private and public international law. Part Two will determine whether and to what extent the res judicata doctrine may be applied by international commercial arbitral tribunals. It will demonstrate that transnational principles of res judicata should be elaborated and will seek to formulate such principles.
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Venter, Debra. "The UNCITRAL model law on international commercial arbitration as basis for international and domestic arbitration in South Africa / Debra Venter." Thesis, North-West University, 2010. http://hdl.handle.net/10394/4930.
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Commercial arbitration is growing in importance in the modern world. People often use arbitration to ensure adjudication by an expert in the field and although arbitration may not always be quicker, its importance continues to grow especially in international commercial disputes.1 Effective arbitration procedures will have positive consequences for the economical and political relationships between countries.2
The Arbitration Act 42 of 1965 might have sufficed in the past, but as international commercial arbitration is ever increasing and changing, this act has become out–dated. It does not effectively facilitate international commercial arbitration. The Act was primarily designed with domestic commercial arbitration in mind and therefore it is of limited assistance in the international commercial arbitration sphere.
The United Nations Commission on International Trade Law3 has developed the Model Law on International Commercial Arbitration.4 This Model Law or variations thereof can be adopted by a country to regulate international commercial arbitration.5 Many countries choose to adopt the Model Law. The reasons vary but some are that the country’s own arbitration laws were out–dated and needed replacement. The Model Law has proved to be effective and it has become a benchmark for good arbitration legislation.6 Some countries have even adopted the Model Law for use in domestic commercial arbitration disputes. The South African Law Commission7 published a report in 1998 dealing with the possible application of the Model Law on international commercial arbitration in South Africa. It drafted a Draft Bill on International Arbitration (not as of yet promulgated) based on the Model Law.9 One of the points of discussion in the report of the Commission was whether the Model Law should also be made applicable to domestic commercial arbitration in South Africa. The conclusion was that domestic and international arbitration should be dealt with separately and that the present Act regulating domestic arbitration should be amended but not replaced by the Model Law. This implies two arbitration regimes: the International Arbitration Act (dealing only with international commercial arbitration); and the Arbitration Act (dealing only with domestic commercial arbitration) After the Commission’s report had been studied and South Africa’s legal position had been compared with Australia’s legal position, it is conlcuded that Australia is a good example to follow in regard to arbitration practices. It is, however, important to keep South Africa’s own background in mind. A good point made by Australia, is the fact that international commercial arbitration legislation and domestic commercial arbitration legislation, should be kept separate. This will bring about effectiveness and clarity for the users of the said legislation. Furthermore, as end conclusion, the Commission’s view is not favoured in regard to the fact that South Africa’s domestic arbitration legislation should not be based on the UNCITRAL Model Law. It would be a good idea to follow suit with Australia and base both South Africa’s international and domestic commercial arbitration legislation on the UNCITRAL Model Law.Thesis (LL.M. (Import and Export Law))--North-West University, Potchefstroom Campus, 2011.
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Awojobi, Adeola Falilat. "Confidentiality and third party participation in international investor-state arbitration." Master's thesis, University of Cape Town, 2015. http://hdl.handle.net/11427/15187.
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The contractual nature of arbitration as a form of alternative dispute resolution in the context of cross-border/international disputes traditionally emphasises confidentiality as one of the fundamental characteristics of international arbitration. Confidentiality is often assumed to be a common feature and advantage of international commercial arbitration, and the privacy of arbitral proceedings has facilitated and encouraged recourse to arbitration. However, the issue of confidentiality has a different dimension and is limited in the context of international investment and trade disputes. The participation of States, State entities, sub-divisions and agencies in international disputes shifts the emphasis from privacy and confidentiality to transparency and accountability. This study analyses the role of confidentiality in investor-State arbitration, noting that confidentiality is not always preserved in many respects and stages throughout the arbitration proceedings. The paper considers the issues that challenge the legal effectiveness of confidentiality in international investor-State arbitration and the development towards transparency. In particular, the paper examines the participation of non-disputing/third parties in investor-State arbitration, the different approaches of major arbitral institutions towards the issue of confidentiality, and the arguments for and against confidentiality in relation to transparency. It concludes by making recommendations in the context of the development of investor-State 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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Mohlin, Anna. "Relations of Power and Democratic Accountability in Investor-State Arbitration." Thesis, Stockholms universitet, Juridiska institutionen, 2020. http://urn.kb.se/resolve?urn=urn:nbn:se:su:diva-180894.
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International investment agreements largely cover today’s transnational investments. These agreements confer certain substantive rights to foreign investors while simultaneously obliging host-states to act in a given manner so as to not interfere with the investments. Most international investment agreements further contain an arbitration clause which provides the investor with the means to enforce the substantive rights of the agreement by directly bringing a claim against the host-state before an arbitral tribunal. Consequently, privately contracted arbitrators have the authority to scrutinize and overrule essentially any sovereign act of the host-state that may affect the investment – judicial and legislative acts included. This practice affects not only the parties of the dispute; when the arbitral award claims superiority to the state’s electoral choices, it further constrains the exercise of sovereignty by the population of the host-state. As a result, the arbitrators who manage the disputes and the investors who initiate them have become central power-holders in the context of both international and domestic law. Meanwhile, the arbitrators and investors alike seem to be unaccountable to the states and individuals who are adversely affected by their power assertions. A commonly accepted feature of democracy is that those who govern and wield power should be accountable to those who are governed and subjected to this power. This thesis relates this notion to a Foucauldian understanding of power, domination and resistance. The primary aim of the thesis is to examine the interplay between the prominent subjects involved in investor-state arbitration and to what degree these subjects hold power in the form of transformative capacity. After this investigation into the relations of power, the thesis scrutinizes the subjugated subjects’ ability to exercise effective resistance through institutionalized accountability mechanisms. The thesis detects an accountability deficit in the regime and concludes that foreign investors and arbitrators hold a dominant position within the context of investor-state arbitration, while states and individuals find themselves in a state of domination. The international investment regime, as it currently stands, is thus found to suffer from a democracy deficit, while it concurrently seems to undermine domestic democratic institutions.
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Dowers, Neil Alexander. "The interface between jurisdiction instruments and arbitration." Thesis, University of Edinburgh, 2015. http://hdl.handle.net/1842/26021.
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This thesis addresses the question of how conventions and other instruments regulating court jurisdiction should deal with court proceedings relating to arbitration. It argues that the conventional approach of excluding court proceedings related to arbitration entirely from the scope of the jurisdiction instrument cannot be justified with reference to any international arbitration convention. It continues to argue that the exclusion of arbitration causes or exacerbates significant problems at the interface between the courts and arbitration, taking the European Union’s recent experience as an example. It then argues that the European legislature has recently directly considered the exclusion of arbitration from its jurisdictional instruments and failed to act effectively. Any amendments to this system will necessarily be offered within the relevant legal context, so an assessment of the prevailing principles in European international private law and international commercial arbitration will follow. Furthermore, the ongoing debate surrounding the delocalisation of arbitration and its relevance to the debate about the interface between court jurisdiction and arbitration shall be addressed. Finally, this thesis proposes a model for inclusion of arbitration in the European jurisdiction instrument (the Brussels I Regulation) that would, it is argued, solve or ameliorate the problems at the interface between the Regulation and arbitration, whilst broadly aligning with the prevailing principles in the relevant legal context. The thesis then considers whether this approach could be extended beyond Europe to the world at large, concluding that it could not. This work therefore takes an original approach to a topic of much contemporary controversy, by taking a holistic, rounded, and reasoned view of the problems at the interface between court jurisdiction and arbitration. It also contains original insights into several other areas, including the historical justification for the exclusion of arbitration from jurisdiction conventions, the importance of mutual trust as a founding principle of the common market, the relevance of the delocalisation debate to the topic, and the proposal for reform advanced at the end of this thesis.
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Alrajaan, Turki. "The Saudi Arbitration Law 2012 assessed against the core principles of modern international commercial arbitration : a comparative study with the model law and Scots law." Thesis, University of Stirling, 2017. http://hdl.handle.net/1893/28039.
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Following the Aramco arbitration in 1963, Saudi Arabia’s approach to international arbitration resulted in a reputation for being an arbitration unfriendly country. This was addressed to some extent by the Arbitration Law of 1983. However, arbitration under the 1983 law remained dependent on the approval of the national courts. With too much scope for judicial intervention, the legal framework undermined the final and binding nature of the award, constrained party autonomy and created inefficient delays. In 2012, a new Law of Arbitration was passed to replace the 1983 law with a legal framework intending to meet the needs of international commercial parties. The question addressed by this thesis is whether the Arbitration Law of 2012 (SAL 2012) succeeds in creating a legal framework that is consistent with the three core principles that provide the foundations for modern international commercial arbitration. These core principles of party autonomy, procedural justice and cost-effectiveness were used as normative tools for assessing the provisions of the SAL 2012, which were based on the UNCITRAL Model Law. Relying on those principles, the SAL 2012 was subjected to a comparative legal analysis, using the Model Law and the Arbitration (Scotland) Act 2010 as comparators. Although hampered by a lack of available case law involving the SAL 2012, the analysis concluded that the SAL 2012 is a very significant development, providing a legal framework that facilitates arbitration, encourages a pro-arbitration culture and achieves a balance between the three core principles that should meet the needs of international commercial parties. Despite this, the law could be further reformed to make Saudi Arabia even more attractive as a location for arbitration. While acknowledging that future reform should be guided by empirical research on arbitration in Saudi Arabia, proposals were made for the further development of a pro-arbitration legal framework.
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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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Asouzu, Amazu Anthony. "African states and international commercial arbitration : practice, participation and institutional developments." Thesis, London School of Economics and Political Science (University of London), 1996. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.388810.
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Lenci, F. "PROVISIONAL MEASURES IN INTERNATIONAL INVESTMENT ARBITRATION." Doctoral thesis, Università degli Studi di Milano, 2015. http://hdl.handle.net/2434/250993.
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The thesis deals with provisional measures in one of the fastest-growing areas of public international law, namely international investment law and arbitration.
Since to the best of my knowledge no monograph has ever been devoted thereto, my task in structuring this dissertation was at the same time easy (I was completely free to choose) and difficult (there was no extensive study to which I could refer). Moreover, the fact that this topic is a moving target, as I demonstrated in my study, rendered my task more complicated and fascinating. Therefore, this thesis constitutes a very personal endeavour, since it aims at representing the current state of my topic as it appeared to me throughout these three years.
After presenting the investment framework with a broad angle (Chapter one), the analysis proceeds through the adoption of a differentiated approach: in Chapter two I firstly draw on the history of the interpretation and application of provisional measures in inter-State and State-private international adjudication (Section one) and, secondly, address these measures from a comparative perspective inscribed in public international law adjudication (Section two). Indeed, in my opinion the choice of comparing the arbitral provisional power in international investment arbitration and international commercial arbitration would have been a wrong one, for two series of reasons, which can be briefly summarised as follows:
- The sovereign nature of one of the parties determines a fundamental difference between the two frameworks, causing that group of disputes to be inscribed in public international law adjudication, which merely share with international commercial arbitration the dispute settlement tool;
- As a corollary, contrary to international commercial arbitral case law, investment arbitral case law is perfectly able to influence (and to be influenced by) consolidation, divergence and development of public international law, constituting one of its sources under the terms of Art. 38 (1) lett. d) of the ICJ Statute.
Chapter three is devoted to the current state of provisional measures in international investment arbitration. Section one addresses their specific features, namely legal force and exclusive / concurrent jurisdiction to rule upon them. Thereafter, Section two focuses on conditions, purposes and atypicalness of recourse thereto (in the effort to describe the picture of the arbitral default rules as they emerge from case law), whereas Section three sets some aspects of treatification and contractualisation of provisional measures.
Chapter four discusses the rules applicable to the implementation of these measures, considering voluntary compliance, non-compliance and its consequences, finally the options available to the addressee in order to oppose their application.
My thesis concludes with some remarks on the role of consent, namely on the possibility for the parties to amend such default rules - through treatification and contractualisation of provisional measures - before their potential dispute occurs. Thus, they are able to tailor the latter to their needs, and particularly to their bargaining power before the investment is carried out in the host State, so as to increase legal security in that respect.
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Yoshida, Ikko. "Comparative study of international commercial arbitration in England, Japan and Russia." Thesis, University of Edinburgh, 2000. http://hdl.handle.net/1842/15757.
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This thesis examines the law on international commercial arbitration in England, Japan and Russia with a view to identify those areas for which harmonisation is of the greatest practical importance. This study is a timely one, since the Arbitration Act 1996 came into effect on 1st January 1997 in England. In Japan, the Committee of Arbitration formed by Japanese experts on arbitration prepared the Draft Text of the Law of Arbitration in 1989, and preparation for amendment based on the UNCITRAL Model Law is under way. In Russia, the Law on International Commercial Arbitration was established based on the UNCITRAL Model Law on 7th July 1993. A comparative study is made of the rules of international private law relating to arbitration, especially issues on international jurisdiction. Despite of recent development of unification of law on arbitration such as the 1958 New York Convention and the UNCITRAL Model Law, there are few rules in this area. This study goes some way towards filling this gap in the legal framework. The classification of an arbitration agreement and its influences upon international private law and law on arbitration are also considered. The issue of classification has been argued by many commentators usually to attempt to clarify the general characteristics of arbitration. However, it is the classification of an arbitration agreement that has practical significance. The classification of an arbitration agreement affects, directly or indirectly, not only the international private law but also law on arbitration. Its effects extend to the law applicable to an arbitration agreement, the law applicable to the capacity of a person to enter into an arbitration agreement, the principle of separability of an arbitration agreement, assignment of an arbitration agreement, the principle of Kompetentz-Kompetentz, and the stay of court proceedings on the basis of the existence of an arbitration agreement. Finally, this comparative study is used as a basis to put forward models for harmonisation in the interpretation of law on arbitration.
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McInnis, J. Arthur. "A commentary on the International Commercial Arbitration Act of British Columbia." Thesis, McGill University, 1987. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=63987.
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Abdullah, Muhammad Tahir. "Role of UAE courts in international commercial arbitration." Thesis, University of Bedfordshire, 2013. http://hdl.handle.net/10547/305727.
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Concept of arbitration has been prevalent, historically, in the Middle East since the early days of Islam. The arbitral process has been problematic in the UAE however, it has not been until recently that the UAE has recognized the importance of arbitration as a powerful dispute resolution alternative and revised its legislation to accommodate the proceedings of domestic and international arbitration. In the past, foreign investors have been reluctant to select the UAE seat for their arbitration proceedings. There has been a perception that, as a general rule, the practice of international commercial arbitration in the Middle East is still in its infancy. The UAE is now demonstrating to the international community that it has the necessary infrastructure and laws in place to successfully count itself as one of the key arbitration players, alongside London, Paris and Hong Kong. This has been the result of the UAE updating their laws, reforming dispute resolution practice and procedures and through the establishment of key regional arbitration centres. The UAE's accession to the New York Convention was also seen as a significant step in demonstrating the UAE's commitment to foreign investors and the international community. Under Federal Decree No. 43 of 2006, the UAE managed to accede to the New York Convention. The UAE's accession is considered as a mile stone towards provision for a more straightforward arbitral process and enforcement of foreign arbitral awards in other Convention states. As a recent development, the UAE has evidenced the joint venture between the Dubai International Financial Centre ('the DIFC') and the London Court of International Arbitration ('the LCIA'), in February 2009, to create the DIFC-LCIA Arbitration Centre ('the DIFC~LCIA'). The DIFC-LCIA operates alongside the longer-established Dubai International Arbitration Centre ('the DlAC'). Both offer their own procedural rules and regulations for the amicable settlement of disputes through arbitration. The Courts role is vital in an arbitral proceeding in any jurisdiction. Although arbitration is believed as a court-free, independent forum for dispute resolution; the court plays fundamental role to ensure that the arbitral proceeding is taking place in a moderate and independent decorum. The UAE Court's role towards the International commercial arbitration has been very problematic and the courts historically used to intervene in the arbitral proceeding over tiny issues. The new UAE arbitration laws has changed the situation and curtailed the courts powers to interfere the arbitral proceeding. At present, the arbitration in the UAE is more independent and straightforward. The proposed UAE arbitration law has much more similarities with the Model Law UNCITRAL and meets the International standards. A lot of work still has to be done in order to make the arbitration more independent, straightforward and friendly in the UAB. The Court's role is vital and is required to be more supportive then it is at present in the arbitral process.
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Shalaan, Wael S. E. "Interim measures in international commercial arbitration : a comparative study of the Egyptian, English and Scottish law." Thesis, University of Stirling, 2013. http://hdl.handle.net/1893/17593.
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Interim Measures are viewed as an essential means to protect parties‘ rights in international commercial arbitration disputes. Most Arbitration Laws and Rules have recognised the arbitral tribunal‘s power to grant such measures. The success of this system relies on the court‘s assistance of the tribunal during the process. This relationship between the tribunal and the court is something vague under Egyptian Law, since there are no clear rules addressing the matter. Hence, this research examines the theories that explain the tribunal‘s authority and the relationship with the authority of the court. This study uses a comparative analytical approach in terms of analyzing relevant legal texts to determine the optimal legal approach to the issue. The purpose of the study is to address deficiencies in the Egyptian law – the Code of Civil Procedure and Egyptian Arbitration Law – and compare it with English, Scottish Arbitration Acts and international arbitration systems, laws, and practices. The findings of this research offer several recommendations that could help achieve a successful and smooth arbitration process. This study identifies and explains types of interim measures and explores the international practice of every type. It gives some important recommendations for future development and improvement of the Egyptian law. It also makes general recommendations that would help improve the efficiency of the English and Scottish laws.
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Petrochilos, Georgios C. "Procedural detachment in international commercial arbitration : the law applicable to arbitral procedure." Thesis, University of Oxford, 2000. https://ora.ox.ac.uk/objects/uuid:41c82c4d-d708-4cfe-b853-d50e41ea0773.
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This thesis seeks to ascertain the rules of private international law determining the procedural law of international commercial arbitral proceedings. In an Introduction, the author outlines the fundamental notions, introduces the topic and the major doctrines and issues, and sets out his methodology and structure of the work. The thesis examine first, as a preliminary issue, the considerations influencing the assumption of jurisdiction over arbitral proceedings. Chapter 1 discusses the various theories on the lex arbitri (the law supplying the general legal framework of an arbitration) as relevant to the procedural law, and concludes that they are deductive and therefore unable to satisfactorily to determine the applicable procedural law. Chapter 2 analyses major national laws as case-studies of the technique and scope of application of international arbitration law, and suggests a model of legislative and court jurisdiction based on the legal concept of 'seat of the arbitration' and on considerations based on the most appropriate court to control an arbitration. Chapter 3 discusses the obligations of the state of the seat under the European Convention on Human Rights and confirms the findings in Chapter 2. In a second part, the thesis elaborates on the title and extent of permissible municipal law interference. Chapter 4 tests the validity of the propositions derived from Chapters 2 and 3 against arbitral practice and concludes that seldom will arbitrators derogate from the law of the seat. Chapter 5 examines the particular case of arbitrations with states and similar entities. The third part discusses the relevance of compliance with the law of the seat at the stage of enforcement of an award. Chapter 6 deals with the technical issue of whether annulment at the place of making precludes enforcement in other fora. That chapter gives the opportunity to discuss models of separation of international jurisdiction and co-operation between different jurisdictions from a practical perspective. It thus serves as a convenient introduction to Chapter 7, which discusses the more abstract question of the nexus required between an arbitral award and the municipal law of the state of rendition in order for the award to enter, in limine, the scope of application of the international instruments in the field. The thesis ends with Conclusions in the form of model provisions for municipal law and arbitration rules.
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Affolder, Natasha. "Fiction, fear and fallacy : compound interest in national law and international arbitration." Thesis, University of Oxford, 1999. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.322784.
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Tolkušinas, Kasparas. "Defective Arbitration Clauses in International Commercial Contracts." Master's thesis, Lithuanian Academic Libraries Network (LABT), 2011. http://vddb.laba.lt/obj/LT-eLABa-0001:E.02~2011~D_20110124_131045-86915.
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Usually in a drafting process of a contract arbitration clause is left at the end of a contract. Sometimes it happens that parties really do not wish start discussions on how should arbitration clause look like or what details should it contain, because either parties think they would never come to a conflict or they are short in time and leave arbitration clause unconsidered. Absence of proper attention when drafting arbitration clauses is likely to give rise to defective arbitration clauses, which lead to much higher than expected time and money costs or even make arbitration impossible.
Master thesis analyses defective arbitration clause types and provision of a way to create correct arbitration clauses. In order to reach this goal gradual completion of tasks is necessary, which involves: a) identification of the main features of defective arbitration clause, b) identification of the main elements of well drafted arbitration clause, c) identification of the main types of defective arbitration clauses, d) provision of a classification of defective arbitration clauses, e) provision of as much as possible ways to avoid defective arbitration clauses and f) analysis doctrine and case law in this field and result encompassing conclusions. First part of master thesis briefly defines international commercial contract. This way the geographical scope of master thesis object is defined. Second part presents the roots of defective arbitration clause. Second part encompasses... [to full text]Dažniausiai rengiant tarptautines komercines sutartis arbitražinė išlyga eina sutarties pabaigoje. Kartais nutinka taip, kad šalys nerodo didelio noro kelti diskusijų dėl to kaip turėtų atrodyti arbitražinė išlyga arba kokius sudėtinius elementus ji turėtų turėti. Šalys gali manyti, kad ginčas mažai tikėtinas, todėl neverta gilintis į arbitražinę išlygą arba dėl laiko stokos įkeliama atsitiktinė arbitražinė išlyga. Pakankamo dėmesingumo trūkumas ruošiant arbitražinės išlygas dažniausiai leidžia kilti arbitražinėms išlygoms su spragomis, kurios esant ginčui priverčia šalis sugaišti daug daugiau laiko ir suvartoja daug daugiau finansinių resursų nei tikėtasi arba išvis paverčia arbitražą kaip ginčų sprendimo būdą šalių atveju neįmanomą. Magistriniame darbe nagrinėjamos arbitražinės išlygos su spragomis ir siekiama pasiūlyti būdą, kaip parengti taisyklingas arbitražines išlygas. Šiems tikslams pasiekti būtinas nuoseklus užduočių įvykdymas, apimantis: a) pagrindinių arbitražinės išlygos su spragomis bruožų nustatymą, b) pagrindinių taisyklingai parengtos arbitražinės išlygos elementų nustatymą, c) pagrindinių arbitražinės išlygos su spragomis tipų nustatymą, d) arbitražinių išlygų su spragomis klasifikacijos pateikimą, e) būdų išvengti arbitražinių išlygų su spragomis pateikimą ir f) doktrinos bei teismų praktikos analizę ir apibendrinančių išvadų pateikimą. Pirmoji magistrinio darbo dalis glaustai apibrėžia tarptautinę komercinės sutartį. Tokiu būdu geografinės magistrinio darbo... [toliau žr. visą tekstą]
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Luttrell, Samuel Ross. "Bias challenges in international arbitration: the need for a 'real danger' test." Thesis, Luttrell, Samuel Ross (2008) Bias challenges in international arbitration: the need for a 'real danger' test. PhD thesis, Murdoch University, 2008. https://researchrepository.murdoch.edu.au/id/eprint/698/.
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Luttrell, Samuel Ross. "Bias challenges in international arbitration: the need for a 'real danger' test." Luttrell, Samuel Ross (2008) Bias challenges in international arbitration: the need for a 'real danger' test. PhD thesis, Murdoch University, 2008. http://researchrepository.murdoch.edu.au/698/.
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Al-Zahrani, Omar Saleh Faris. "Reflections on the downfall of public international arbitration in the 20th century." Thesis, University of Hull, 2002. http://hydra.hull.ac.uk/resources/hull:5723.
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The purpose of this thesis is to demonstrate the pattern of the rise and fall of inter-state arbitration as a means of international dispute settlement through the reflection of the legal doctrine over the past 100 years. The discussion will touch upon a number of basic issues related to the public international arbitral sector, such as the true nature of arbitration, as well as the origins of current-day arbitral practice, arbitral procedure, state practice, the legal and non-legal dispute dichotomy, jurisdiction of international tribunals, and the historical development of general inter-state arbitral mechanisms in the 20th century. Our examination will be conducted mainly in the light of the provisions of the various international instruments concerned with the peaceful settlement of international disputes adopted in the past century and also the views of leading legal writers and scholars on various aspects of the international arbitral process and state practice. It is interesting to note that despite the dramatic change in the level of utilisation of inter-state arbitration, within the domain of academic research, studies concerning the area of inter-state arbitration are rather scarce; the issue has been neglected. Instead, interest has shifted almost totally to arbitration in other fields and recent studies on arbitration are devoted to the settlement of disputes between states, commercial concerns and individuals. Public international arbitration in general is a means of dispute resolution that was able to deliver prior to the current decline in tribunal utilisation and is still capable of fulfilling an important role in the area of peaceful settlement of international disputes, despite the significant changes that have occurred to the fabric of the international community over the past 100 years and the various ideological, cultural and religious diversities that have emerged as a result (the Iran - USA Claims tribunal and the two awards in the Hanish Island arbitration are examples). However, it may be that its image needs to be polished and re-introduced (hence, a few suggestions as to possible ways of revitalising the public international arbitral sector are provided at the end of the general conclusion in Chapter Six). The study is divided into six main chapters, each covering a certain aspect of the issue under consideration. The first chapter is intended to provide the reader with a general background on the concept and nature of international arbitration, the origins of current arbitral practice and its historical evolution starting from the 19th century, as well as the main fundamental features of international arbitration which have made it an attractive means of settlement to states, namely, the parties' influence over the composition of the tribunal; their freedom in specifying the law(s) applicable; their freedom to specify the basic considerations with regard to the award; the possibility of secrecy: and the non-intervention by third parties into proceedings. Chapter Two will attempt to provide a general background on the rise and fall of international arbitral practice by reviewing the momentum of arbitral practice in the last two centuries in the domains of both the number of disputes submitted to arbitration during that period and also arbitral treaty practice, which has tailed off following the 2nd World War. The discussion in this respect will also include an examination of a number of possible factors behind states' disinclination to resort to arbitration, namely, the argument regarding the justiciability or otherwise of disputes; previous negative experiences with arbitration; the avoidance of the reaction of internal political factions within the state in the case of a non-favourable award; and the nature of dispute settlement by legal means. The examination will also reflect upon certain aspects of Soviet international law and practice concerning arbitration and also the practice of the so-called developing states in Africa and Asia. Chapter Three will be totally devoted to the state consent requirement. The discussion in this respect will examine the principle of state sovereignty with regard to its origins; its main internal and external aspects; and the compatibility of the granting of consent by states for the submission of their disputes to international tribunals with the doctrine of state sovereignty. Light will also be shed on the significance of state consent in the field of the peaceful settlement of disputes, and how consent to arbitration is expressed. In Chapter Four, light will be shed on the concept and nature of compulsory arbitration; the legal and non-legal dispute dichotomy with regard to its origins, theoretical dimensions and its implementation in actual dispute settlement and treaty practice. The discussion will also reflect on the compulsory jurisdiction of the ICJ by first discussing of all the voluntary means in which consent is expressed to the ICJ, and then examining the Court's compulsory jurisdiction under the Optional Clause. Chapter Five will focus on the historical background and procedural aspects of the past general inter-state arbitral mechanisms. Each chapter will be started with an introduction and followed by a conclusion and endnotes. A general summary and conclusion will follow in a separate chapter at the end of the thesis. The central topic of this thesis is arbitration; however, where necessary, our discussion may also include other means of dispute resolution from among those listed in Art. 33(1) of the UN Charter, especially, international adjudication via the ICJ. In this respect, since the dicta of the ICJ and arbitral tribunals on the issue of state consent to the jurisdiction of international tribunals are usually referred to by writers on consent to arbitration in an amalgamated matter, without distinction between the two areas, a similar approach will be adopted in our discussion on the issue. However, a distinction will be made with regard to the procedural and practical aspects of the granting of consent by states to each means. The discussion in the thesis is confined solely to the area of inter-state arbitration involving public international law disputes between states only. However, where relevant, mention will also be made of certain examples of disputes involving states and non- state parties.
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Ng, Yu-wai Magnum. "A comparative study of the law and practice on taking of evidence in international arbitration proceedings an eclectic approach of common law and civil law systems /." access abstract and table of contents access full-text, 2008. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b22730126a.pdf.
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Thesis (M.A.)--City University of Hong Kong, 2008.Title from PDF t.p. (viewed on Oct. 3, 2008) "City University of Hong Kong, School of Law, LW 6409A Dissertation." Includes bibliographical references (p. 63-65)
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Ezejiofor, Obianuju Chioma. "Domestic courts and international investment arbitral tribunals : nurturing a profitable and symbiotic relationship." Thesis, Queen Mary, University of London, 2014. http://qmro.qmul.ac.uk/xmlui/handle/123456789/8964.
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This thesis proposes that conscious and increased co-operation and coordination of the relationship between investment tribunals and domestic courts can greatly improve the efficacy of the international investment arbitration system, and further the rule of law. The extent of the power both forums wield, the level of influence both systems have on each other and the critical roles both systems play in the resolution of investment disputes warrant a systematic approach to cooperation and coordination. This study finds justification for this proposition by analyzing the policy implications of investment arbitration outcomes. It goes on to explore the relationship between domestic courts and investment tribunals by examining the roles they play and the areas of jurisdictional friction between the two systems. The core issues addressed include the jurisdiction and competence of international investment tribunals and domestic courts in the resolution of investment disputes; the support roles of domestic courts; anti-suit/anti-arbitration injunctions; pre-conditions to arbitration; the effects and implications of the review of investment tribunals’ decisions by domestic courts, and the review of the lawfulness of the conduct of domestic judicial systems by investment arbitration tribunals. In addressing these issues, the work examines the extent to which domestic courts and international arbitration tribunals should accord deference to each other with respect to their involvement in the resolution of investment disputes. Based on the analysis of the areas of intersection between the domestic and international investment dispute settlement systems, instances of ‘positive interactions’ are highlighted and encouraged. The study also proposes ways in which further cooperation and coordination can take place. In making these proposals, and acknowledging the differences that exist, this thesis considers the collaboration between other international adjudicatory bodies and domestic courts so as to distill lessons for the international investment arbitration system.
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Assaduzzaman, Assad Khan. "Agreements of state-entity and state liability in international investment arbitration." Thesis, University of Southampton, 2013. https://eprints.soton.ac.uk/348851/.
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Most often in an investment agreement between a State entity and a foreign investor the arbitral tribunal is faced with the question of the liability of the State for the conduct of its entities. To make it precise the crucial findings of this research is whether or to what extend the States hall be liable for the commercial conduct of its entities? State affiliates in general includes, ‘state organ, ‘state agency’, ‘instrumentality’, ‘state-owned entity’, ‘state-owned company’, ‘publicly owned corporation’, ‘government business enterprise’, ‘public sector undertaking’ and ‘parastatal entity’. ‘State entities’ with separate legal personality do not include the ‘state organ’, ‘agency’ and ‘political subdivision’ for which a State is responsible under the principle of customary international law. The main highlights of this research is whether the State shall be liable for the commercial, non-governmental activities of ‘State entities’ with separate legal personality having substantial structural and functional government control over them while they enter into investment agreements with foreign investors. This leads to the critical arguments to establish in the first place whether the State is a party to the investment agreements of its separate legal entities with foreign investors. To respond this, findings of this research leads to the point that has been highlighted in relation to the true separation of these State entities from the government. It is that the significance of structural and functional control by the governmental over the habitual affairs of these entities. For this purposes two significant reasons are taken into consideration. First, whether the government officials or members of the cabinet preside as the head of the corporations or entities? Second, whether they administer the daily affairs of the entities such as participating in the negotiation and decision making process while entering into the agreement with foreign investors. If that is satisfied then the requirement for a State to be a party to the investment agreement of its entities is considered fulfilled. The most striking point of this research is then whether the State and its entities are entitled to immunity both from jurisdiction and execution. However, following the greater participation of State through State entities in the international trade and foreign investment the restrictive approach of immunity has seen a resultant raise in relation to the jurisdiction of arbitral tribunal. As regard to immunity from the enforcement measure the final stumbling block is the process of identification of public assets which are held by the State to perform its sovereign non-commercial functions often mixed with the assets allocated for commercial purpose against which enforcement can be done, is continued to be an issue at large. The emphasis of this research has been extended to have a closer look at the State immunity laws internationally in relation to the limitations of various conventions and codifications and judicial precedent that address the issue of enforcement in investment arbitration.
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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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Borba, Igor M. "International Arbitration: A comparative study of the AAA and ICC rules." [Milwaukee, Wis.] : e-Publications@Marquette, 2009. http://epublications.marquette.edu/theses_open/20.
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Toope, Stephen John. "Arbitrations involving states and foreign private parties : a study in contemporary legal process." Thesis, University of Cambridge, 1986. https://www.repository.cam.ac.uk/handle/1810/285973.
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Arbitrations involving states and foreign private parties are a complex phenomenon, sharing certain animating values with other forms of adjudication, particularly international arbitrations of private commercial disputes, but reflecting at the same time singular values that must be fostered if the institution is to play a beneficial role in the international community. A study of institutional forms of arbitration designed primarily to resolve commercial disputes between private parties reveals that their emphasis upon stability and upon the certainty and predictability of rules can make such institutions inappropriate for the arbitration of disputes involving states. Regimes designed specifically to regulate arbitrations between states and foreign private entities may be more successful in displaying sensitivity to the needs and aspirations of both public and private parties, but the work of the largest specialised institution, the International Centre for Settlement of Investment Disputes, is hampered by its governing Treaty for it does not deal adequately with the enforcement of awards against states. Ad hoc arbitration continues to be a useful means of resolving commercial disputes between states and foreign private parties, especially because the parties are free to design or to choose a delocalised procedural law which need not hinder enforcement. The great difficulty with all forms of arbitration between states and private entities is the substantive law to be applied by such tribunals. Under the principle of the autonomy of the will, the parties are free to choose the governing law, and they may select international law. If they do so, however, the choice does not imply that the foreign private party is assimilated to a state or that the international responsibility of the state party is engaged directly vis-a-vis the private party. The enforcement of arbitral awards is also a troubling problem, but recent municipal case law reveals a growing pro-enforcement bias. Nevertheless, the experience of the Iran-United States Claims Tribunal reveals the significant advantages that accrue to the parties if they agree in advance upon an independent enforcement mechanism. The political tensions inherent in most "mixed" arbitrations demand flexibility in the application of procedural and substantive rules, and require an approach to dispute resolution that emphasises the value of compromise. As such, the awards that emerge from mixed arbitrations are likely to be idiosyncratic or, at the very least, vague. Nevertheless, if one stresses the importance of process values rather than the elaboration of substantive rules, arbitration between states and foreign private parties can play an important role in the enhancement of the international rule of law.
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Al-Shubaiki, Torki. "The Saudi Arabian arbitration law in the international business community : a Saudi perspective." Thesis, London School of Economics and Political Science (University of London), 2003. http://etheses.lse.ac.uk/2654/.
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Arbitration is now generally accepted as a principle method of solving disputes in commercial transactions. It is no longer a product to be advertised in seminars or symposiums related to international trade, rather it is a must in international business transactions. Because we have reached a point where most countries have adopted the UNCITRAL Model Law on arbitration and become party to the 1958 New York Convention on the recognition and enforcement of foreign arbitral awards, we believe that some studies from the Islamic perspective are necessary in order to find a route to the theory of the delocalisation of arbitration. Moreover, at the time when practitioners are calling for the internationalisation of arbitration, I believe that my duty as a former Secretary of the Arbitration Board at the Chamber of Commerce and Industry in Riyadh is to discuss, evaluate, and present the situation as it stands today. It is also, our responsibility to propose a route to its harmonisation within the international standards of arbitration. The idea of providing a historical background to arbitration is not solely for the purpose of historical research. However, as we will see in later chapters when we describe the Saudi legal system, Shari'a law and Islamic jurisprudence are the main laws of the land, and they are applicable whenever there is a statutory vacuum. Therefore, an Islamic solution has to be found when addressing any problems related to arbitration in this research. Also, the purpose of this research is to set down the reasons that have made people believe that Saudi Arabia, of all the Arab Middle Eastern countries, is indeed the one in most need of a well-developed arbitration system, since some of the major banking and commercial activities are not permitted to come before the Shari'a courts. Moreover, in the year 2000 Saudi Arabia implemented the Foreign Investment Act, which liberalizes foreign investment in the Kingdom. The Saudi Arabian Government Investment Authority, which has responsibility for licensing all new foreign investment in Saudi Arabia, was created under the Act. This of course comes as a result of the government's desire to diversify the sources of national income. All these reasons should have an affect on developing commercial law in general and arbitration in particular.
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Ratz, Peter [Verfasser]. "International and European Law Problems of Investment Arbitration involving the EU / Peter Ratz." Baden-Baden : Nomos Verlagsgesellschaft mbH & Co. KG, 2017. http://d-nb.info/1160321434/34.
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Alba, Betancourt Ana Georgina. "Cross-border conflicts of patents and designs : a study of multijurisdictional litigation and arbitration procedures." Thesis, Queen Mary, University of London, 2015. http://qmro.qmul.ac.uk/xmlui/handle/123456789/8918.
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This thesis examines procedural litigation problems arising when two parties have a conflict involving the same patent or design, with an impact in several jurisdictions, taking as a case study the litigation procedures of Apple and Samsung. The thesis asks whether this type of dispute is best resolved through a single procedure. If so, what would be the circumstances surrounding such procedure in terms of jurisdiction, applicable law, preliminary injunctions and enforcement of the decisions? It first identifies the problems related to the type of dispute when taking parallel actions in different National Courts. Then it examines the European litigation procedure of patents and designs and assesses how this system addresses the inconsistency of the national litigation regime. It argues that in relation to patents, the Unitary Patent Court (UPC) has the potential to solve some of the problems identified in the thesis and that a similar unitary system should be extended to disputes involving designs. However, in the absence of an effective international court system outside the EU for global disputes, it suggests that a single arbitration procedure is still needed. The thesis identifies the main legal barriers to an arbitration procedure as being: bringing the parties to arbitrate, the arbitrability of the dispute, the identification of applicable law and the need for preliminary injunctions. It is concluded that: the agreement to arbitrate should be facilitated by the authorities so that it is appealing to the parties; the arbitrability can be resolved by limiting the effect of the judgment to the parties; a flexible approach can be adopted to applicable law through the application by the arbitrator of ‘choice of law’ rules; and, even when a preliminary injunction is needed, the parties may recur to arbitration. The thesis concludes that the primary benefit of a single arbitration procedure would be the creation of a single award enforceable at international level.
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Esan, Adenike Oluwatoyin. "Stability guarantees in investment treaty arbitration : a question of balancing competing rights." Thesis, University of Aberdeen, 2018. http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?pid=239415.
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Terrett, Stephen Terence. "The dissolution of Yugoslavia and the Badinter Arbitration Commission." Thesis, University of Liverpool, 1998. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.367242.
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This thesis examines the dissolution of Yugoslavia during 1991-2 and the involvement of a legal commission, known as the Badinter Arbitration Commission, in this process. This Commission was an ad hoc legal organ which was created for the purpose of assisting in the peaceful resolution of the conflict which erupted in Yugoslavia during the latter years of the Cold War and continued throughout the post-Cold war period. Whether it can truly be described as having been fully resolved remains to be seen. The thesis describes international events leading to the end of the Cold War, domestic events leading to Yugoslavia's dissolution and institutional responses leading to the creation of the Commission. The Commission's jurisprudence is analysed, with particular focus on the Commission's advice relating to issues surrounding the dissolution process. Having been mandated to operate in a civil conflict at a time of great turbulence in contemporary international relations, one cannot ignore certain issues of wider interest. Fundamentally, one must question whether Yugoslavia represents an international legal anomaly or evidences changes in international law and threats to international peace and security. One must seek to draw lessons from the way in which the Yugoslav conflict arose and the way in which a peaceful-settlement was sought if international law's current responses are to be assessed.
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Elombi, George. "Arbitration of international commercial and investment disputes : are the misgivings of developing states justified?" Thesis, Queen Mary, University of London, 1996. http://qmro.qmul.ac.uk/xmlui/handle/123456789/1668.
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This thesis is concerned with the attitude of countries of the developing world to international commercial arbitration. It argues that their perception of arbitration in international trade is that the process does not favour them. In an attempt to explain that perception it identifies several possible reasons, ranging from the character of arbitration as a means of settling disputes, to the judicial treatment of awards in which the states have been involved. The treatment of the subject is structured to correspond largely with the three separate stages of the arbitration process. Chapters one and two address the legal character of arbitration and its underlying philosophy. The reservations of many developing countries are explained in terms of the differences in the understanding of the nature and purpose of arbitration between, on the one hand, the countries concerned and, on the other hand, the western systems on which the international model is based. Chapter three addresses the conduct of arbitration proceedings under the International Centre for the Settlement of Investment Disputes (ICSID) and the Mukilateral Investment Guarantee Agency (MIGA) as examples of institutions created specificafly with the arbitration of commercial disputes involving developing states in mind. The chapter argues that both institutions are one-sided, thus contributing to the misgivings of the countries concerned. Chapter four deals with the problem of the proper law of state contracts as recently evolved by arbitration tribunals. It notes that there has been a shift from traditional principles of conflict of laws, resulting in the isolation of the transactions from the only systems of law with which they ordinarily would have the closest connection. It points out that the trend is guided by policy not principle. It criticises the trend on that and other grounds. Chapter five deals with the enforcement of awards. We point out in that chapter that little at that stage of the process suggests a trend unfavourable to developing countries.
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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