Academic literature on the topic 'Arbitral tribunals'
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Journal articles on the topic "Arbitral tribunals"
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Voser, Nathalie. "Recent Developments on the Doctrine of Res Judicata in International Arbitration from a Swiss Perspective: A Call for a Harmonized Solution." ASA Bulletin 33, Issue 4 (December 1, 2015): 742–79. http://dx.doi.org/10.54648/asab2015059.
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The Swiss Federal Tribunal has recently rendered three decisions addressing the issue of res judicata in the context of international arbitration, opening the door to possible developments of the doctrine of res judicata as applied in international arbitrations seated in Switzerland. This article elaborates on the Swiss Federal Tribunal's latest decisions on the topic and endeavors to challenge some of the core principles of the doctrine of res judicata as developed in the Swiss practice. The authors propose that arbitral tribunals apply the provisions of the lex arbitri (instead of Article II(3) New York Convention) when examining the requirement of recognition of a foreign state court judgment where an exceptio arbitri was raised in the first proceedings. The article also puts in question one of the key holdings of the Swiss Federal Tribunal, i.e. the application of the Swiss lex fori to the issue of res judicata by an arbitral tribunal seated in Switzerland. Rather than the strict principles of res judicata as developed by the Swiss Federal Tribunal, the authors suggest that arbitral tribunals seated in Switzerland should use their procedural discretion and develop autonomous rules which are more generally recognized and thereby seek to define the core content of the principle of res judicata. In doing so, and in the absence of internationally applicable rules, arbitral tribunals can promote harmonized principles of res judicata better designed for international arbitration than particular national rules.
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Meier, Andrea, and Yolanda Mcgough. "Do Lawyers Always Have to Have the Last Word? Iura Novit Curia and the Right to Be Heard in International Arbitration: an Analysis in View of Recent Swiss Case Law." ASA Bulletin 32, Issue 3 (September 1, 2014): 490–507. http://dx.doi.org/10.54648/asab2014054.
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This article examines the civil law principle of iura novit curia and its relationship with the parties' right to be heard in international arbitration, with a particular focus on recent Swiss case law. The principle of iura novit curia empowers arbitral tribunals in an arbitration seated in Switzerland to apply the law ex officio, without being limited to the legal arguments pleaded by the parties. The parties do not have a specifically protected right to be heard on the arbitral tribunal's legal assessment unless the tribunal intends to base its decision on a rule of law or legal concept the parties neither have invoked nor could have anticipated as relevant, i.e. unforeseeable legal grounds. Recent case law has consolidated and further refined the strict requirements that need to be fulfilled in order for the Swiss Federal Tribunal to set aside an award on the basis of unforeseeable legal grounds. The Federal Tribunal's restrictive practice is consistent with the limited judicial control over arbitral awards available under the Swiss Private International Law Act. However, for reasons of transparency and the parties' trust in the conduct of the proceedings, the authors submit hat arbitral tribunals should apply a more generous standard and grant the parties a right to be heard whenever they intend to rely on legal grounds the parties did not plead. Finally, the article raises the question whether the principle of iura novit curia not only vests the arbitral tribunal with the power to apply the law ex officio, but also imposes a corresponding duty on the tribunal.
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Walters, Gretta L. "Fitting a Square Peg into a Round Hole: Do Res Judicata Challenges in International Arbitration Constitute Jurisdictional or Admissibility Problems?" Journal of International Arbitration 29, Issue 6 (January 21, 2012): 651–80. http://dx.doi.org/10.54648/joia2012041.
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Parties in international arbitrations often raise res judicata challenges before arbitral tribunals and courts. But neither parties nor the tribunals or courts have been clear as to whether these challenges affect the admissibility of a claim or the tribunal's jurisdiction. A close analysis of arbitral awards and court decisions that address res judicata challenges reveals, however, that the question need not be as complicated as parties, tribunals, and courts have made it.
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Rose, Cecily. "Questioning the Role of International Arbitration in the Fight against Corruption." Journal of International Arbitration 31, Issue 2 (April 1, 2014): 183–264. http://dx.doi.org/10.54648/joia2014010.
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International arbitration does not represent a promising mechanism for the adjudication of corruption in the context of international business transactions, although parties appear to be raising allegations of corruption with increasing frequency in arbitration proceedings. This article surveys over fifty arbitral awards, spanning many decades, and rendered by tribunals of the International Centre for Settlement of Investment Disputes and the International Chamber of Commerce, tribunals applying the arbitral rules of the United Nations Commission on International Trade Law and the Iran-United States Claims Tribunal. On the basis of this survey, the article argues that arbitral tribunals have made an unsatisfactory contribution to the adjudication of corruption allegations partly due to avoidance techniques employed by both tribunals and parties, as well as some questionable reasoning on the part of arbitral tribunals. Most significantly, however, tribunals have faced major evidentiary problems because parties have tended to provide inadequate evidentiary support for corruption allegations. Tribunals could pursue five potential solutions to these evidentiary problems, namely drawing adverse inferences, placing greater reliance on circumstantial evidence, lowering the standard of proof, shifting the burden of proof, and drawing on factual findings in domestic proceedings. Finally, this article concludes by arguing that arbitral tribunals are also ill-suited to the adjudication of such claims because the public interest in the adjudication of corruption allegations is at odds with the relatively closed, non-transparent character of arbitration.
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Florescu, Cristina. "Arbitral Tribunal Power to Disqualify Unethical Counsel." Journal of Economic Development, Environment and People 4, no. 4 (December 24, 2015): 15. http://dx.doi.org/10.26458/jedep.v4i4.125.
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In specific matters of conflicts of interest ethical issues in connection with the parties' legal representatives could occur in the course of arbitration proceedings. The purpose of this paper is to identify and investigate the current status of the arbitral tribunals and arbitral institutions power to sanction counsel’s misconduct in the event of conflicts of interest. Parties have a fundamental right to choose the counsel and in the same time the right to an independent and impartial tribunal, therefore the source of the arbitral tribunal power to disqualify a counsel is a hot topic. There are no express provisions granting arbitrators such power, only soft law instruments, but which have no binding effect as long as the parties do not agree on them. For these reasons, two renowned cases where international arbitral tribunals have dealt with the subject are examined. Developing “truly transnational” ethical rules and their implementation by the arbitral institutions might be a solution. Arbitral tribunals are establishing this issue on the basis of the undertaken and applied international soft law (professional guidelines) which gained credibility and popularity and also became accepted international standards in the arbitration field.
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Hansen, Peter C. "The World Bank Administrative Tribunal’s External Sources of Law: The Next Chapter (2006–2010) (Part II)." Law & Practice of International Courts and Tribunals 11, no. 3 (2012): 449–97. http://dx.doi.org/10.1163/15718034-12341236.
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Abstract The World Bank Administrative Tribunal has begun its second quarter-century with a jurisprudential flowering of extraordinary proportions. Mr. Hansen’s study, which builds on his earlier 25-year retrospective, comprehensively surveys the Tribunal’s numerous doctrinal developments during this time. In this article, which is part two of two, Mr. Hansen revisits two of the four subjects explored in his retrospective: (i) the role of general legal principles as a source of Tribunal law, particularly with respect to the Tribunal’s recent and extensive due process jurisprudence; and (ii) the role of external case law as a source of Tribunal law, including decisions from international courts, international administrative tribunals, international arbitral tribunals and national courts. Extensively footnoted, Mr. Hansen’s study is intended for both academics and practitioners specializing in international administrative law and comparative international jurisprudence.
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LAVRANOS, NIKOLAOS. "The MOX Plant and IJzeren Rijn Disputes: Which Court Is the Supreme Arbiter?" Leiden Journal of International Law 19, no. 1 (March 2006): 223–46. http://dx.doi.org/10.1017/s0922156505003262.
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The MOX Plant and IJzeren Rijn disputes illustrate the growing problem of concurrent jurisdiction between international courts and tribunals and the ECJ. This article argues that in cases in which Community law is involved in a dispute between two EC member states, international courts and tribunals must accept the exclusive jurisdiction of the ECJ under Article 292 of the EC Treaty to decide these cases. However, only the UNCLOS arbitral tribunal in the MOX Plant case stayed the proceedings and requested that the parties first find out whether the ECJ had jurisdiction, whereas the OSPAR as well as the IJzeren Rijn arbitral tribunals rendered their awards despite the implications of Article 292. Thus it appears that every arbitral tribunal decides the issue of Article 292 as it sees fit. This situation, it is argued, requires the creation of some sort of hierarchy between the growing number of international courts and tribunals in order to co-ordinate and harmonize their decisions so as to avoid a fragmentation of international law.
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Shore, Laurence, Vittoria De Benedetti, and Mario de Nitto Personè. "A Pathology (Yet) to Be Cured?" Journal of International Arbitration 39, Issue 3 (June 1, 2022): 365–78. http://dx.doi.org/10.54648/joia2022016.
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Fifty years ago, Frédéric Eisemann coined the expression ‘pathological clause’ to refer to arbitration clauses that substantially deviate from the essential requirements of a model clause. However, arbitration practitioners have not yet learned their lesson; the matter of pathology is far from being outdated. Arbitration clauses may be pathological if they do not provide for mandatory referrals to arbitration proceedings, or do not meet certain other requirements to provide for a workable arbitration procedure, or contain a reference to non-existing arbitral institutions and/or arbitral rules, or provide for a proceeding administered by an arbitral institution pursuant to different institutional rules. In most instances, the competent supervisory court (or the arbitral tribunal or institution dealing with a defective clause) seeks to cure these pathologies. Arbitral tribunals and national courts generally try to ascertain whether the parties’ real intention is to arbitrate, and, if that to arbitrate is apparent, to give effect to and enforce an otherwise invalid arbitration clause. In any case, parties should not blindly rely on tribunals’ and courts’ tendency to uphold such clauses; the only safe approach is to avoid pathology. pathological/pathology, arbitration clause, hybrid (arbitration clause), asymmetric (arbitration clause) effectiveness principle, validity, enforcement, vacatur contractual autonomy
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Oetiker, Christian. "Witnesses before the International Arbitral Tribunal." ASA Bulletin 25, Issue 2 (June 1, 2007): 253–78. http://dx.doi.org/10.54648/asab2007025.
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It is commonplace before international arbitral tribunals sitting in Switzerland to conduct extensive examinations of witnesses. In the interest of admitting flexible solutions, national arbitration acts and institutional arbitration rules do usually not provide for detailed provisions as to the taking of evidence from witnesses. Nevertheless, it is obviously in the interest of all parties to arbitral proceedings that firm and clear rules are determined in this regard. It is the arbitral tribunal’s task to provide for rules which are adapted to the individual case. This article gives an overview of the issues that may arise in connection with the examination of witnesses and for which the arbitral tribunal should provide supplementary procedural rules, if the procedural rules agreed by the parties do not provide for detailed rules.
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Poulain, Bruno. "Clauses de la Nation la Plus Favorisée et Clauses d’Arbitrage Investisseur-Etat: Est-ce la Fin de la Jurisprudence Maffezini?" ASA Bulletin 25, Issue 2 (June 1, 2007): 279–301. http://dx.doi.org/10.54648/asab2007026.
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The Most-Favored-Nation (MFN) clause is a provision by which contracting States to a bilateral investment treaty (BIT) commit to afford to ‘investors’ under the BIT a treatment not less favourable than that extended to other foreign investors. In the Maffezini case in 2000, the arbitral tribunal held that international arbitration is inextricably linked to the treatment of foreign investors and on this basis that the MFN clause may also apply to dispute settlement clauses. Such solution renders available to ‘investors’ under a given BIT encompassing an appropriate MFN clause more favourable dispute settlement mechanisms offered by the contracting State under other BIT. However, in the arbitral tribunal’s view, some limits have to be associated to this principle for complying with policy of the concerned State in matter of international investment disputes settlement. Despite the flexibility of the solution adopted by the arbitral tribunal, the margin of uncertainty resulting thereof had drastic consequences in practice. The Maffezini case impacted both behaviours of those drafting new BIT or similar instruments and conducts of legal counsels seeking for their clients the most efficient legal ground for supporting their claims. In two very recent cases rendered in 2005 and 2006, namely Plama and Telenor, other ICSID arbitral tribunals considered that the MFN clause cannot prevail on the basic arbitration requirement which is the meeting of the parties’ consents to arbitrate. Consequently, arbitral tribunals constituted in these two recent cases were reluctant to set up a procedural bridge between two bilateral instruments and to consider possible the application of a specific dispute settlement clause provided for in a given BIT to disputes raised under the realm of another BIT. Consistently with this opinion, they held that an MFN clause must apply only to the ‘treatment of investments’ understood as ‘substantial’ not ‘procedural’ rights applicable thereto. However, taking into account the factual and procedural circumstances in which these cases were addressed as the weakness of some of their legal justifications, it would be burning steps to declare the end of the Maffezini case authority.
Dissertations / Theses on the topic "Arbitral tribunals"
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Weeramantry, Joseph Romesh Gregory. "The interpretation of treaties by foreign investment arbitral tribunals." Thesis, Queen Mary, University of London, 2010. http://qmro.qmul.ac.uk/xmlui/handle/123456789/28971.
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This thesis explores the rules of treaty interpretation as they are applied by foreign investment arbitral tribunals ("FIATs"). Its primary aims are: a) to determine whether FIAT treaty interpretation practice is generally consistent with other international courts and tribunals; b) to assess whether the treaty interpretation rules contained in the 1969 Vienna Convention on the Law of Treaties ("Vienna Convention") are suitable for application in investor-State treaty disputes; and c) to evaluate the contribution of FIAT treaty interpretation jurisprudence to international law. The body of the thesis provides a background to treaty interpretation rules in international law and then examines in detail the application of the rules of interpretation contained in the Vienna Convention by both international courts and tribunals and FIATs. It also explores modes of interpretation that have been deployed by these two groups which are not explicitly referenced in the Vienna Convention. Investigation is also made of some unique or notable aspects of FIAT jurisprudence that relates to treaty interpretation. The research was carried out primarily through the analysis of international court and tribunal decisions and FIAT awards. The principal findings of the thesis are that: a) a general congruence exists between the interpretative practice of FIATs and that of other international courts and tribunals; b) the application of the Vienna Convention rules on treaty interpretation are suitable for investment treaty arbitration, with some exceptions, e. g., in situations where investors have vastly disproportionate access to the preparatory work of treaties as compared with respondent States; and c) FIATs have made a significant contribution to the international law of treaty interpretation.
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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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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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Cockfield, Sandra A., and n/a. "The Interaction of Industrial Tribunals and Workplace Industrial Relations in Australia: the Metal trades, 1900 to 1929." Griffith University. Griffith Business School, 1998. http://www4.gu.edu.au:8080/adt-root/public/adt-QGU20050914.170636.
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This thesis examines the influence of compulsory state arbitration and wages board systems on workplace industrial relations. Using an historical and comparative case study approach, the thesis researches workplace industrial relations at three firms operating in the metal industry between 1900 and 1929. A political economy perspective is employed to examine the interaction of institutional stnictures and economic and political processes in the regulation of the wage-effort bargain at the workplace. Key concepts are drawn from both mainstream industrial relations theory, in particular the Oxford School approach, and labour process theory. Drawing on the work of flanders, a distinction is made between the economic and political aspects of the wage-effort bargain through the differentiation of market relations and managerial relations. This thesis argues that arbitral and wages board systems interacted with a range of factors to shape and influence workplace industrial relations. In keeping with the political economy perspective, the thesis examines the economic, industry, technological, political, and institutional environment within which the three cases operated, identifying changes and trends in these factors during the period under review and their implications for workplace industrial relations. The three cases allowed a closer examination of the influence of these general trends on the development of workplace industrial relations. The cases demonstrate the diversity of the metals sector, each representing a different industry in that sector. Further, the cases differed in their geographic and jurisdictional location, allowing comparisons between Victoria and New South Wales to be made. An examination of the role of arbitral tribunals and wages boards argues that the tribunals used their ability to regulate and stabilise market relations to offset their intervention in managerial relations. In this respect the tribunals sought to engineer changes in managerial relations favourable to industry development and yet simultaneously obtain support from the unions through improvements in market relations. As a consequence of these conflicting objectives the tribunals often behaved in a contradictory manner. In addition, unintended consequences often flowed from tribunal regulation and were important in shaping events at the workplace. Thus while industrial tribunals sought to improve market relations, they inadvertently assisted workers to gain more influence over managerial relations. In each case the workplace was the site of much regulatory activity, whether initiated by management, unions or workers. However, the three cases each present a different pattern of workplace industrial relations in terms: of scope of regulation at the workplace; the role of unions; the nature of managerial strategy; the role of unions; and the implementation and enforcement of tribunals decisions. Moreover, the effect of arbitration and wages board systems at each workplace varied, with the influence of a particular matrix of industry, economic, technological and institutional conditions shaped at the workplace.
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Zajdela, Basile. "L'autorité de la chose jugée devant l'arbitre du commerce international." Thesis, Paris 1, 2015. http://www.theses.fr/2015PA010276.
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L’autorité de la chose jugée est consubstantielle à l’idée même de justice. Si l’arbitrage est une justice privée et contractuelle mais une «justice quand même», elle doit logiquement composer avec l’autorité de la chose jugée. Il faut d’abord que les décisions issues de cette justice puissent bénéficier d’une telle autorité ; il faut ensuite que les juridictions arbitrales respectent l’autorité des décisions qui ont été rendues antérieurement. C’est ce second point qui est le cœur de notre étude.Du point de vue de l’arbitre du commerce international, la question de l’autorité des décisions, qu’elles soient arbitrales ou étatiques, présente des difficultés originales qui tiennent, pour l’essentiel, à la position autonome de l’arbitre. Investi d’une mission juridictionnelle ponctuelle par la volonté des parties, l’arbitre n’est a priori pas tenu par les considérations relatives à la cohérence d’un ordre juridique précis, à la paix sociale, à la bonne administration de la justice… Autrement dit, le seul caractère juridictionnel de sa mission ne lui impose pas nécessairement la prise en compte de la chose précédemment jugée. Tout bien analysé, il s’avère que c’est la volonté des parties à l’arbitrage qui conduit l’arbitre à reconnaître la normativité des décisions puis à leur attribuer une certaine autorité, à cette fin, il devra d’abord s’assurer de leur régularité avant de s’interroger sur l’étendue de leur autorité.Le fondement subjectif de l’obligation pour l’arbitre de respecter l’autorité de la chose déjà jugée et l’absence de contrôle étatique conduisent toutefois à reconnaître à l’arbitre une vaste liberté dans le choix des règles ou principes applicables. Nous verrons toutefois qu’à condition de distinguer les différentes formes empruntées par l’autorité de la chose jugée, le traitement de l’autorité de la chose jugée par les arbitres internationaux, s’il n’est pas homogène, est loin d’être aussi chaotique que l’on pourrait le croire, mieux encore, il apparaît que des pratiques raisonnables peuvent souvent être distinguéesThe force of res judicata is consubstantial with the very idea of justice / is an integral part of the idea of justice. If arbitration is private and contractual justice – but “justice nonetheless” – it logically needs to deal with the force of res judicata. Firstly, the decisions issued by arbitrators need to benefit from this force; secondly; arbitral tribunals need to respect the force of previous judicial decisions. Our study focusses on the latter aspect. From the point of view of the international commercial arbitrator, the question of the res judicata effect of arbitral or court decisions poses interesting questions and presents challenges, primarily with regards to the autonomous position of the arbitrator entrusted with an ad hoc judicial task in accordance with the intention of the parties, the arbitrator is not a priori bound to considerations regarding the coherence of a specific legal order, social peace or the sound administration of justice… In other words, the jurisdictional character of the arbitrators’ mission alone does not necessarily force them to take into account the force of res judicata. All things considered, it appears that it is the intention of the parties in the arbitration process which leads the arbitrator to acknowledge the normativity of the decisions, and to attribute them a certain force. To this end, the arbitrator will be required to check their conformity before reflecting upon the scope of their force. The subjective basis for the arbitrator’s obligation to respect the force of res judicata and the absence of state control nevertheless invite to consider the arbitrator’s significant amount of leeway in choosing which rules and principles to apply. However, we will show that, provided that a distinction is made between the different forms taken by the force of res judicata, the treatment of the force of res judicata by international arbitrators, if not exactly homogeneous, is far from being as chaotic as one might think, indeed, it appears that reasonable practices can even be observed
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Benzing, Markus. "Das Beweisrecht vor internationalen Gerichten und Schiedsgerichten in zwischenstaatlichen Streitigkeiten (English summary) = The @law of evidence before international courts and arbitral tribunals in inter-state disputes." Heidelberg : Springer, 2010. http://dx.doi.org/10.1007/978-3-642-11647-6.
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Thesis (doctoral) - Universität, Heidelberg, 2008/2009.English summary: The law of evidence before international courts and arbitral tribunals in inter-state disputes. Copyright by Max-Planck-Institut zur Förderung der Wissenschaften e.V., to be exercised by Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg. Description based on print version record. Includes bibliographical references and register.
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Salehi, Meysam. "Investment Treaty Arbitration as a Public and Unilateral Dispute Settlement : A redefinition of the autonomy of disputing parties and arbitral tribunals in the process of investment treaty arbitration." Thesis, Uppsala universitet, Juridiska institutionen, 2020. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-412159.
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Over the last decade, investment treaty arbitration has been confronted with relatively extensive and fundamental criticisms. The problem with the system in fact boils down to a misconception by tribunals of the nature of investment treaty arbitration. Many scholars and tribunals have perceived and treated investment treaty arbitration as a reciprocal arrangement with a private function. This is so mainly because of the way they formulate the establishment of investment treaty arbitration. To put it simply, it has been though that investment treaty arbitration, similar to international commercial arbitration, is founded upon a reciprocal contract made through a merger of intentions of the host State and the foreign investor. This perception would necessarily lead to the application of the principle of party autonomy as the main governing principle over the process of arbitration; a principle that is well tailored to adjudications with private function. Contrary to this, a careful examination of the nature of investment treaty arbitration reveals not only the public dimensions of the system, but also the unilaterality of the framework on which the system stands. These two characteristics require a shift in paradigm; otherwise, the system will expose to more and more legitimacy crises. The present research, therefore, tends to make a clear distinction between the two systems of international commercial and investment treaty arbitration, and explore the implications of this paradigm-shifting for the process of investment treaty arbitration, in particular, the way tribunals interpret the instrument of consent and the autonomy of tribunals in the course of the arbitration.
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Zajdela, Basile. "L'autorité de la chose jugée devant l'arbitre du commerce international." Electronic Thesis or Diss., Paris 1, 2015. https://buadistant.univ-angers.fr/login?url=https://www.stradalex.eu/fr/se_mono/toc/AUCHOJU.
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L’autorité de la chose jugée est consubstantielle à l’idée même de justice. Si l’arbitrage est une justice privée et contractuelle mais une «justice quand même», elle doit logiquement composer avec l’autorité de la chose jugée. Il faut d’abord que les décisions issues de cette justice puissent bénéficier d’une telle autorité ; il faut ensuite que les juridictions arbitrales respectent l’autorité des décisions qui ont été rendues antérieurement. C’est ce second point qui est le cœur de notre étude.Du point de vue de l’arbitre du commerce international, la question de l’autorité des décisions, qu’elles soient arbitrales ou étatiques, présente des difficultés originales qui tiennent, pour l’essentiel, à la position autonome de l’arbitre. Investi d’une mission juridictionnelle ponctuelle par la volonté des parties, l’arbitre n’est a priori pas tenu par les considérations relatives à la cohérence d’un ordre juridique précis, à la paix sociale, à la bonne administration de la justice… Autrement dit, le seul caractère juridictionnel de sa mission ne lui impose pas nécessairement la prise en compte de la chose précédemment jugée. Tout bien analysé, il s’avère que c’est la volonté des parties à l’arbitrage qui conduit l’arbitre à reconnaître la normativité des décisions puis à leur attribuer une certaine autorité, à cette fin, il devra d’abord s’assurer de leur régularité avant de s’interroger sur l’étendue de leur autorité.Le fondement subjectif de l’obligation pour l’arbitre de respecter l’autorité de la chose déjà jugée et l’absence de contrôle étatique conduisent toutefois à reconnaître à l’arbitre une vaste liberté dans le choix des règles ou principes applicables. Nous verrons toutefois qu’à condition de distinguer les différentes formes empruntées par l’autorité de la chose jugée, le traitement de l’autorité de la chose jugée par les arbitres internationaux, s’il n’est pas homogène, est loin d’être aussi chaotique que l’on pourrait le croire, mieux encore, il apparaît que des pratiques raisonnables peuvent souvent être distinguéesThe force of res judicata is consubstantial with the very idea of justice / is an integral part of the idea of justice. If arbitration is private and contractual justice – but “justice nonetheless” – it logically needs to deal with the force of res judicata. Firstly, the decisions issued by arbitrators need to benefit from this force; secondly; arbitral tribunals need to respect the force of previous judicial decisions. Our study focusses on the latter aspect. From the point of view of the international commercial arbitrator, the question of the res judicata effect of arbitral or court decisions poses interesting questions and presents challenges, primarily with regards to the autonomous position of the arbitrator entrusted with an ad hoc judicial task in accordance with the intention of the parties, the arbitrator is not a priori bound to considerations regarding the coherence of a specific legal order, social peace or the sound administration of justice… In other words, the jurisdictional character of the arbitrators’ mission alone does not necessarily force them to take into account the force of res judicata. All things considered, it appears that it is the intention of the parties in the arbitration process which leads the arbitrator to acknowledge the normativity of the decisions, and to attribute them a certain force. To this end, the arbitrator will be required to check their conformity before reflecting upon the scope of their force. The subjective basis for the arbitrator’s obligation to respect the force of res judicata and the absence of state control nevertheless invite to consider the arbitrator’s significant amount of leeway in choosing which rules and principles to apply. However, we will show that, provided that a distinction is made between the different forms taken by the force of res judicata, the treatment of the force of res judicata by international arbitrators, if not exactly homogeneous, is far from being as chaotic as one might think, indeed, it appears that reasonable practices can even be observed
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Ribicic, Dario. "The Relationship between EU Law and the Energy Charter Treaty : Possible Implications of EU Membership on the Jurisdiction of Arbitral Tribunals in intra-EU Investor-State Disputes under the ECT." Thesis, Uppsala universitet, Juridiska institutionen, 2020. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-412169.
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Castillo, Freyre Mario, Minaya Rita Sabroso, and Catalán Jhoel Chipana. "La constitución del Tribunal Arbitral y las medidas cautelares en el arbitraje." Arbitraje PUCP, 2014. http://repositorio.pucp.edu.pe/index/handle/123456789/112662.
Full textBooks on the topic "Arbitral tribunals"
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Sharmin, Tanjina. Application of Most-Favoured-Nation Clauses by Investor-State Arbitral Tribunals. Singapore: Springer Singapore, 2020. http://dx.doi.org/10.1007/978-981-15-3730-1.
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Sovereign states and suits before arbitral tribunals and courts of justice. Clark, N.J: Lawbook Exchange, 2004.
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Bungenberg, Marc, and August Reinisch. From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral Investment Court. Cham: Springer International Publishing, 2018. http://dx.doi.org/10.1007/978-3-030-01189-5.
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Bungenberg, Marc, and August Reinisch. From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral Investment Court. Berlin, Heidelberg: Springer Berlin Heidelberg, 2020. http://dx.doi.org/10.1007/978-3-662-59732-3.
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Bungenberg, Marc. From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral Investment Court: Options Regarding the Institutionalization of Investor-State Dispute Settlement. Berlin, Heidelberg: Springer Nature, 2020.
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Ministers, Council of Europe Committee of. Arbitral tribunals under the laundering convention: Setting up and functioning ofarbitral tribunals under Article 42, paragraph 2, of the Convention on Laundering, Search, Seizure and Confiscation of the proceeds from Crime (European Treaty Series No. 141) : recommendation No. R (91) 12 adopted by the Committee of Ministers of the Council of Europe on 9 September 1991 and explanatory memorandum. Strasbourg: Council of Europe, 1992.
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Joongi, Kim. 4 The Arbitral Tribunal. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198755432.003.0004.
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This chapter discusses Korean arbitral tribunals. Korean courts have been strict in applying the provisions in the Arbitration Act regarding these. The courts have not hesitated to set aside awards when they have found that the parties have not complied with provisions concerning tribunal requirements or where tribunals have had conflicts of interest. Under the new 2016 Arbitration Act, furthermore, when the parties fail to appoint an arbitrator or reach agreement on a sole arbitrator or the chair, the court can now designate an institution such as the Korean Commercial Arbitration Board (KCAB) to appoint the arbitrator. The KCAB has accumulated considerable experience and has greater institutional knowledge than the courts concerning the expertise of potential arbitrators, particularly international ones. With these developments in mind, the chapter reviews some formative cases which have shaped these tribunals in their current incarnation.
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Bernard H, Oxman. 18 Courts and Tribunals: The ICJ, ITLOS, and Arbitral Tribunals. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198715481.003.0018.
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The settlement of disputes between States is generally not regulated by municipal law and municipal courts but by international law regulated by treaty. Because States are not subject to the jurisdiction of international tribunals absent express consent, an important function of dispute settlement clauses in treaties is to indicate whether such consent is granted and, if so, with respect to which disputes before which tribunals. This chapter discusses the following: the obligation of states to settle disputes peacefully; the duty to arbitrate or adjudicate disputes under the United Nations Convention on the Law of the Sea (LOSC); choice of forum for compulsory settlement of LOSC disputes; nature of dispute; procedural and substantive limitations on jurisdiction under Section 2 of Part XV of the LOSC; and institutional constraints on the exercise of jurisdiction.
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Reinmar, Wolff. 6 The Arbitral Award. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780199676811.003.0006.
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This concluding chapter examines the arbitral award given at the outcome of the arbitration proceedings. It describes the different ways German arbitration law resolves the dispute — by decision of the arbitral tribunal and by settlement of the parties — and the rules which the arbitral tribunal applies when deciding on the merits and costs. Traditionally, arbitration is characterized by, on the one hand, largely flexible arbitral proceedings and, on the other hand, an outcome, the award that not only is tantamount to a state court judgment but also is equipped with restricted remedies and facilitated means of enforcement both domestically and internationally. In conformity with German court tradition, arbitral tribunals in Germany often encourage the parties to consider making a settlement. To facilitate enforcement of the terms of any such settlement, it may be recorded by the arbitral tribunal in the form of an award on agreed terms.
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Markus S, Rieder, and Kreindler Richard. 4 The Arbitral Proceedings. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780199676811.003.0004.
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This chapter addresses the legal framework applicable to proceedings before arbitral tribunals seated in Germany. On this basis, it first discusses the typical structure and frequent steps of arbitral proceedings. Regarding the initiation of arbitral proceedings, German law follows a three-step model consisting of: request for arbitration, constitution of the arbitral tribunal and initial pleadings by claimant (statement of claim) and respondent (statement of defence). German ad-hoc proceedings usually contain few mandatory formalities for the request for arbitration. Pursuant to the ZPO, its minimum contents are designation of the parties, designation of the subject matter of the dispute, and reference to the applicable arbitration agreement. The chapter concludes by examining a wide range of special situations, highlighting the steps taken by the German Institute of Arbitration (DIS) during events such as multi-party arbitration, as well as issues of fraud, money laundering, and corruption.
Book chapters on the topic "Arbitral tribunals"
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Jarrett, Martin. "Rebalancing Asymmetries Between Host States and Investors in Asian Investor–State Dispute Settlement: An Exception for Systemic Corruption." In Corruption and Illegality in Asian Investment Arbitration, 185–205. Singapore: Springer Nature Singapore, 2024. http://dx.doi.org/10.1007/978-981-99-9303-1_7.
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AbstractConsider the following case. An investor is building an apartment complex. Halfway into developing this multi-million-ducat investment, a government department starts demanding bribes, which is business as usual for it. The investor initially resists, but eventually caves in. Years later, the host state seeks to use the investor’s participation in this corruption against it in an investment-treaty arbitration. The applicable investment treaty stipulates that only lawfully made investments are protected, with the result that the investor must fail. Any arbitral tribunal would be uncomfortable with this outcome. The degree of wrongfulness of the investor’s conduct pales in comparison to the host state's, noting that the host state has let many of its governmental departments become dens of corruption. But the arbitral tribunal’s hands are apparently tied. The terms of the applicable investment treaty are clear: the investor's claim must be denied, with an asymmetric outcome that effectively benefits the state. This chapter unties arbitral tribunals’ hands. It lays down another path for these tribunals to follow in such cases, one which avoids this outcome, yet remains honest to the tenets of international investment law.
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Oellers-Frahm, Karin, and Andreas Zimmermann. "Mixed Arbitral Tribunals of the Peace Treaties." In Dispute Settlement in Public International Law, 1595–627. Berlin, Heidelberg: Springer Berlin Heidelberg, 2001. http://dx.doi.org/10.1007/978-3-642-56626-4_95.
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Tussupov, Adilbek. "Arbitral Tribunals Upholding Corruption and Fraud Arguments." In Corruption and Fraud in Investment Arbitration, 57–97. Cham: Springer International Publishing, 2022. http://dx.doi.org/10.1007/978-3-030-90606-1_6.
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Tussupov, Adilbek. "Arbitral Tribunals Not Upholding Corruption and Fraud Arguments." In Corruption and Fraud in Investment Arbitration, 99–127. Cham: Springer International Publishing, 2022. http://dx.doi.org/10.1007/978-3-030-90606-1_7.
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Saravanan, A., and S. R. Subramanian. "Interactions Between Indian Courts and Investment Arbitral Tribunals." In Role of Domestic Courts in the Settlement of Investor-State Disputes, 153–80. Singapore: Springer Singapore, 2020. http://dx.doi.org/10.1007/978-981-15-7010-0_5.
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Sharmin, Tanjina. "Application of MFN to Extend the Jurisdiction of Arbitral Tribunals." In International Law and the Global South, 197–260. Singapore: Springer Singapore, 2020. http://dx.doi.org/10.1007/978-981-15-3730-1_6.
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Bečvářová, Bára. "Virtual Arbitration Hearings in Times of COVID-19 (And Beyond)." In Cofola International 2021, 19–46. Brno: Masaryk University Press, 2021. http://dx.doi.org/10.5817/cz.muni.p210-8639-2021-1.
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Until 2020, arbitration hearings usually presumed a physical presence of all participants in one room. Although hearings conducted by way of remote communication, i.e., virtual hearings, have been technically possible for several years, their use was limited at best. Due to travel restrictions imposed by the COVID-19 pandemic, the situation changed rapidly and virtual hearings came into the focus of the arbitral community. Mindful of the changing attitudes, this paper firstly discusses attributes of the virtual hearings, their advantages and challenges. Furthermore, with the benefit of the hindsight, the second part looks at how the arbitral institutions handled the “new normal” imposed by COVID-19 in terms of the guidance provided to the tribunals and parties.
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Robles, Alfredo C. "The Defaulting State and the Jurisdiction of Annex VII Arbitral Tribunals." In The Defaulting State and the South China Sea Arbitration, 79–188. Singapore: Springer Nature Singapore, 2023. http://dx.doi.org/10.1007/978-981-19-6394-0_2.
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Delfino, Francesca. "‘Considerations of Humanity’ in the Jurisprudence of ITLOS and UNCLOS Arbitral Tribunals." In Interpretations of the United Nations Convention on the Law of the Sea by International Courts and Tribunals, 421–44. Cham: Springer International Publishing, 2019. http://dx.doi.org/10.1007/978-3-030-10773-4_21.
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Bungenberg, Marc, and August Reinisch. "From Arbitral Tribunals to a Multilateral Investment Court: The European Union Approach." In Handbook of International Investment Law and Policy, 1–35. Singapore: Springer Singapore, 2020. http://dx.doi.org/10.1007/978-981-13-5744-2_109-1.
Full textConference papers on the topic "Arbitral tribunals"
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Hodermarsky, Jan, and Vlastislav Stavinoha. "Condifentiality of Arbitral Awards on National, International and Institutional Level." In COFOLA International 2022. Brno: Masaryk University Press, 2022. http://dx.doi.org/10.5817/cz.muni.p280-0231-2022-12.
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Confidentiality of arbitration is told to be one of the reasons why parties actually choose to arbitrate. The question of whether the arbitral award should remain confidential is however not unified across different jurisdictions. The regulation of this matter varies even when it comes to rules of various arbitration tribunals. Some jurisdictions consider the confidentiality of arbitral award to be an implied obligation derived from the very nature of arbitral process. This article analyses the legal regulation of confidentiality of arbitral awards on various levels while the importance of the publication is presented in the context of the lack of decisional coherence in international arbitration. Further, the resolution of potential conflict of the regulations is analysed. There are good reasons for making awards publicly available. Considering the information society of the 21st century, the fact that the publication of awards is regulated differently in different jurisdictions is a hindrance of parties’ legal certainty.
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Bečvářová, Bára. "Contract Adjustment in Arbitration – Should the Approach Be Adjusted?" In COFOLA International 2022. Brno: Masaryk University Press, 2022. http://dx.doi.org/10.5817/cz.muni.p280-0231-2022-10.
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For decades, the general attitude has been moving towards accepting contract adjustment in arbitration. More and more, the question is when and how a contract may be adjusted and not whether the arbitrators may have such a power. The article will firstly discuss hardship as a basis for contract adjustment and provide general discussion on arbitrators’ position in cases of hardship. Once the scene is set the paper will focus on how the issue is approached in the area of long-term gas sale and purchase agreements and especially the price review clauses. Based on their example, it is concluded that arbitral tribunals should evaluate not only conditions of hardship but also the will of the parties to continue the contract and, in absence of any other guidance, request proposals for adjustment from the parties.
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Krusóczki, Bence. "The Hungarian Arbitration System and the Unfair Competition." In Mezinárodní konference doktorských studentů oboru právní historie a římského práva. Brno: Masaryk University Press, 2022. http://dx.doi.org/10.5817/cz.muni.p280-0156-2022-15.
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This entry will deal with the history of competition law, including the first substantive competition law of Hungary, i.e. Article V of 1923, which contained provisions regarding unfair competition. Currently, unfair competition is the subject of competition law, one of the branches of economic law, which contains regulations regarding the protection of economic competition and the prevention of consumer detriment. The purpose of Article V of 1923 was to offer general protection against any form of unfair competition. The demonstration of each provision of the Article and the detailed demonstration and investigation of their practical implementation is not the topic of the present entry. The present paper will specifically focus on the arbitral tribunals of the Chamber and the practice of the jury since the fact that the duty and practice of these two bodies were highly significant for the application of the law in that era can be clearly concluded from the summary of research results.
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Nový, Zdeněk. "The Dichotomy of Obligations of Conduct and Result in International Investment Law." In COFOLA International 2022. Brno: Masaryk University Press, 2022. http://dx.doi.org/10.5817/cz.muni.p280-0231-2022-7.
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The content of an international obligation must be ascertained before the investment tribunals have decided that the international obligation was breached. Whilst some obligations in investment treaties require a result to be attained by states or investors, others demand they undertake their best efforts. The dichotomy of obligations of conduct and result is a useful tool in analysing the content of international obligations derived from standards of treatment contained in investment treaties, thereby assisting in determining international responsibility. Firstly, the standard of full protection and security is analysed through the lenses of the dichotomy. Secondly, the procedural obligations stemming from dispute resolution provisions are examined, including the obligation to submit to arbitration, the obligation to comply with arbitral awards, and the obligation to recognise and enforce the latter. Thirdly, the dichotomy serves to enhance the understanding of investors’ obligations to respect human rights under investment treaties. The dichotomy may thus assist in establishing the content of the human rights’ obligation in question, and thus the investor’s responsibility for its breach.
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Topaloğlu, Mustafa. "Arbitral Awards Under ISTAC Arbitration." In International Conference on Eurasian Economies. Eurasian Economists Association, 2021. http://dx.doi.org/10.36880/c13.02580.
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Arbitration is a well-established and widely used method of resolution of disputes outside the state courts. There are various arbitration centers around the world. The Istanbul Arbitration Centre ISTAC is an independent, neutral and impartial institution providing efficient dispute resolution services for both international and domestic parties. The arbitral awards rendered under ISTAC Arbitration Rules are subject to enforcement by officers just as court decisions. ISTAC arbitration proceeding is carried out by The Sole Arbitrator or Arbitral Tribunal which consist of President and other arbitrators. The Sole Arbitrator or Arbitral Tribunal shall render the award on the merits of the dispute, within 6 months from the date upon which the completion of the signatures on the terms of reference. When the dispute is resolved by an Arbitral Tribunal, it shall decide by majority. In the absence of majority, the award shall be made by the President of the Arbitral Tribunal. The arbitral award contains information of parties and arbitrators, the reasoning of the award, the decision, the decision concerning the costs of the arbitration. The awards are signed by Sole Arbitrator or Arbitral Tribunal. The Sole Arbitrator or Arbitral Tribunal may correct ex officio any computational and typographical errors in the award within 30 days of the date on which the award was rendered. The arbitration proceedings are terminated by the issuance of the award or by the occurrence of any circumstances which are stipulated under ISTAC Arbitration Rules Article 3.
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Deynekli, Adnan. "Problems in Recognition and Enforcement of Foreign Arbitral Awards in Turkey." In International Conference on Eurasian Economies. Eurasian Economists Association, 2013. http://dx.doi.org/10.36880/c04.00806.
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If the arbitral award which requested to recognition and enforcement given in the country is a party to New York Convention dated 1958, primarily the provisions of this Convention shall be applied. The recognition and enforcement of domestic law and regulations duly implemented. Whether judgment fees should be fixed or proportional are discussion. The demand for recognition and enforcement of foreign arbitral tribunal shall not review the basis of the decision of the referee. The necessary conditions for enforcement of foreign arbitral decisions and must be moved. The existence of the arbitration agreement against the enforcement of the arbitration requested by referee assignments, and to be aware of the dispute to arbitration and enforcement required to be favorable verdict must not be contrary to public policy.