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Published: 4 June 2021
Last updated: 22 June 2024

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1

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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2

Sovereign states and suits before arbitral tribunals and courts of justice. Clark, N.J: Lawbook Exchange, 2004.

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3

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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4

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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5

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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6

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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7

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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8

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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9

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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10

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.
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11

Silja, Schaffstein. The Doctrine of Res Judicata Before International Commercial Arbitral Tribunals. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198715610.001.0001.

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There are currently no rules in international commercial arbitration law and practice assuring the coordination between 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 commercial 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 research 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 aims to determine whether and to what extent the res judicata doctrine may be applied by international commercial arbitral tribunals. It aims to demonstrate that transnational principles of res judicata should be elaborated and will seek to formulate such principles.
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12

Schaffstein, Silja. The Doctrine of Res Judicata Before International Commercial Arbitral Tribunals. Oxford University Press, 2016.

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13

Gabrielle, Kaufmann-Kohler, and Rigozzi Antonio. 5 The Jurisdiction of the Arbitral Tribunal. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780199679751.003.0005.

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Building upon the discussion on the validity and effects of arbitration agreements in chapter 3, this chapter examines the rules governing the jurisdiction of arbitral tribunals. It addresses a number of questions arising from the arbitral tribunal’s and the courts’ review of arbitral jurisdiction, from the implications of the principle of competence-competence to jurisdictional objections and the effects of parallel proceedings. Special attention is given to topics such as the so-called negative effect of competence-competence, the arbitration-specific lis pendens rule established in Article 186(1) bis PILA and the res judicata effect of prior arbitral or judicial decisions on jurisdiction. The chapter’s final section discusses anti-suit and anti-arbitration injunctions.
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14

Silja, Schaffstein. Part II The Doctrine of Res Judicata in International Commercial Arbitration, 3 Res Judicata Issues Arise in International Commercial Arbitration. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198715610.003.0004.

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This chapter presents varying situations in which issues concerning the res judicata doctrine arise before arbitral tribunals. These situations may be sorted into four categories, based on the nature of the court or tribunal having rendered the first final and binding decision. First, situations that arise between arbitral tribunals and state courts; second, between different arbitral tribunals; third, within a same arbitration proceeding between a partial and a final award and lastly, between supra national courts or tribunals and arbitral tribunals. The fourth category concerns mostly investment protection treaty cases. Because of the proliferation of multiple proceedings and an increasing bifurcation of arbitration proceedings, the number of cases in which arbitrators will have to deal with res judicata issues will also increase.
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15

Christine, Chinkin. Part II International Judicial and Arbitral Procedure and Third Parties, 11 Third Parties before International Arbitral Tribunals. Oxford University Press, 1993. http://dx.doi.org/10.1093/law/9780198257158.003.0011.

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16

Michael, Moser, and Bao Chiann. 7 Arbitral Tribunal (Articles 6–12, Schedules 2 and 3). Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198712251.003.0007.

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This chapter describes the framework for parties to appoint, remunerate, challenge, and replace arbitrators under the HKIAC Rules. Disputes submitted to HKIAC arbitration are generally determined by an arbitral tribunal of one or three arbitrators. The parties may agree on the number of arbitrators either before or after the dispute has arisen. The appointment procedures contain detailed provisions on the constitution of these one-member or three-member tribunals in cases involving two or more parties. In addition, the arbitrator fee mechanism offers parties a choice to remunerate the arbitral tribunal by reference to hourly rates or the sum in dispute. The challenge and replacement procedure prescribes specific timelines and grounds for a party to apply to remove an arbitrator.
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17

Margaret L, Moses. Part VIII Arbitrators’ Decision-Making Power and Arbitral Tribunals’ Cessation of Functions, 21 Inherent and Implied Powers of Arbitrators. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198783206.003.0022.

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The powers of arbitrators in international commercial arbitration are based on the agreement of the parties, usually set forth in an arbitration clause contained in a contract between the parties or in a separate agreement to arbitrate. Increasingly, however, arbitrators are exercising powers that are not derived specifically from a party agreement, but rather may be implied or inherent. The terms ‘implied’ and ‘inherent’ are frequently used rather loosely, and sometimes interchangeably. This chapter develops a framework for understanding and using the terms, so that parties, arbitrators, and courts can employ common meanings and concepts when considering arbitral powers. Implied and inherent powers, properly exercised, can help ensure that the arbitral process fulfils its promise of providing a fair, ethical, and reasonable way to resolve disputes.
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18

Greg, Fullelove. Part VIII Arbitrators’ Decision-Making Power and Arbitral Tribunals’ Cessation of Functions, 24 Functus Officio? Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198783206.003.0025.

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This chapter examines the meaning of the principle of functus officio. The expression is used to refer to the point when the arbitral tribunal has discharged its duty in full and can no longer act. This point is generally held to be when the tribunal has concluded all matters with which it has jurisdiction to deal pursuant to a particular arbitration agreement. But while the principle itself may be superficially straightforward, its scope and application in certain cases have raised issues. The chapter asks: When can the tribunal be sure that its mandate is complete, i.e. officio functus est? When, if ever, can the arbitrators definitively say that they are ‘free’ of their duties in an arbitration? It suggests that it would be wrong to believe that a tribunal has certainly finished its work when it sends the final award to the parties. In many jurisdictions and under the leading arbitration rules, there will still be a continuing but reduced mandate to correct, interpret, and/or revise the award and perhaps to issue additional awards.
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19

V V, Veeder. Part I International Arbitration Law, Arbitral Jurisdiction, and Arbitral Institutions, 3 The New 2014 LCIA Rules: An Introductory Explanation. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198783206.003.0004.

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This chapter discusses the revised rules of the London Court of International Arbitration (LCIA). The revisions fall into two basic groups: changes to correct earlier drafting inconsistencies (from 1981 to 1998), inaccurate reflections of actual LCIA practice, and excessively English legal language for an international arbitration; and new procedures decided by the LCIA. These revisions include the increased use of electronic communications by parties with the LCIA registry and LCIA tribunals, particularly for starting an LCIA arbitration; the procedure for an emergency arbitrator; changes to the default arbitral seat of an LCIA arbitration; the consolidation, etc., of different arbitrations for multi-party disputes; and a solution to the ‘Slovenia’ problem regarding potential conflicts between an arbitrator and a party’s legal representative.
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20

Sharmin, Tanjina. Application of Most-Favoured-Nation Clauses by Investor-State Arbitral Tribunals: Implications for the Developing Countries. Springer Singapore Pte. Limited, 2021.

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21

Sharmin, Tanjina. Application of Most-Favoured-Nation Clauses by Investor-State Arbitral Tribunals: Implications for the Developing Countries. Springer, 2020.

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22

Annabelle, Möckesch. Attorney-Client Privilege in International Arbitration. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198795865.001.0001.

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Attorney–client privilege is often invoked as a defence in international arbitration proceedings. Nevertheless, the participants often have very different expectations regarding the applicable privilege standard, as national attorney–client privilege laws vary widely between jurisdictions. This is complicated by the fact that institutional arbitration rules do not include provisions on the scope of attorney–client privilege, nor do they contain conflict-of-laws rules to determine the applicable national privilege standard. The determination of the applicable level of protection is rather left to the discretion of the arbitral tribunal. Drawing on interviews with more than thirty leading international arbitration practitioners and extensive academic research, this book provides guidance to arbitral tribunals regarding the determination of the applicable attorney–client privilege standard. It compares attorney–client privilege in key common and civil law jurisdictions, analyses precedent from previous tribunals, and finally sets out proposed changes to the legal framework governing this area.
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23

Jeffery, Commission, and Moloo Rahim. 5 The Splitting of Issues for Separate Determination (Bifurcation/Trifurcation). Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198729037.003.0005.

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This chapter focuses on one of the most important procedural decisions a tribunal can make in an investment arbitration: the bifurcation or trifurcation of issues into separate phases. The rationale behind bifurcation/trifurcation is straightforward: bifurcation may result in the narrowing or even dismissal of claims, but can significantly increase the costs and duration of an arbitration. This has not gone unnoticed by users of the International Centre for Settlement of Investment Disputes (ICSID) and other systems of dispute settlement. After discussing the relevant arbitration rules that govern the decisions of arbitral tribunals on bifurcation, the chapter considers the various procedural aspects of bifurcation requests. It also examines the number of bifurcation requests actually filed in ICSID and UNCITRAL arbitrations, how tribunals decided those requests, and the factors applied by tribunals in those decisions.
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24

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

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This chapter presents the author’s recollections of his personal experiences involving the Chartered Institute of Arbitrators and, more generally, the world of arbitration. He describes how he became a member of the Institute in the mid 1960s. He discusses the taking of evidence by arbitral tribunals, saying that the issue remains important because most commercial disputes are decided by arbitral tribunals based on material facts, rather than on an erudite analysis of the transaction agreement, or a microscopic evaluation of the provisions of the applicable national law. He also believes that arbitral tribunals must do their best to ensure that the costs incurred by the parties are reasonable. The Institute has the duty to educate its members and students on the importance of cost control, and to use their discretionary powers to allocate the costs of legal representation (and other costs) in their awards in a way that discourages excessive expenditure by the eventual winning party.
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25

Wautelet, Patrick, Thalia Kruger, and Govert Coppens, eds. The Practice of Arbitration. United Kingdom by Hart Publishing Ltd, 2012. http://dx.doi.org/10.5040/9781509922130.

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This book offers a series of commentaries on noteworthy arbitral awards and court decisions on arbitration. All contributions focus on the practice of arbitration. Influential authors with proven arbitration experience share their insights on celebrated and less well-known cases, drawn from various countries, various arbitration institutions and including both commercial and investment arbitration. This collection of essays celebrates the work and scholarship of Hans van Houtte, who has been a professor of international commercial arbitration at the University of Leuven for more than 20 years. In addition to his widely -praised contribution to the theory of arbitration, Professor Van Houtte has built a long career in the practice of arbitration, presiding over a vast array of arbitral tribunals and holding appointments to international tribunals, most recently as president of the Iran-US Claims Tribunal. Hans van Houtte has always been concerned with the practical usefulness of scholarly writings, and this book respects this approach. This volume will prove essential for all arbitration practitioners and will also be of great interest also to academics and research students with an interest in international arbitration.
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26

Jeffery, Commission, and Moloo Rahim. 6 Non-Disputing Party Participation and Transparency. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198729037.003.0006.

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This chapter examines the issue of transparency in treaty-based investment arbitration by focusing on the participation of third parties or non-disputing parties in disputes. More specifically, it considers the procedural issues that transparency mechanisms in bilateral-investment treaties and free-trade agreements, as well as in recently revised arbitral rules, create for arbitral tribunals and those appearing before them. After discussing non-disputing party practice in investment arbitrations, the chapter explains the practice of non-disputing state parties in UNCITRAL and International Centre for Settlement of Investment Disputes (ICSID) arbitrations. It also analyses transparency mechanisms beyond the participation of non-disputing parties in investment arbitrations from the written procedure through to the oral procedure, culminating in a tribunal's decisions and award.
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27

Alexander A, Yanos. Part VI Discovery and Document Production, 16 Discovery in Arbitration: Can Parties Use 28 USC § 1782 to Circumvent the Process Ordered by the Arbitral Tribunal? Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198783206.003.0017.

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This chapter focuses on Section 1782 of Title 28 of the United States Code (USC). One of the stated purposes of 28 USC § 1782 (‘section 1782’) is to provide ‘judicial assistance to foreign or international tribunals’. However, the profound differences between the broad form of discovery available under section 1782 and the narrow form of discovery generally available in international arbitration may create the possibility of conflicts between the process envisioned by the arbitral tribunal and the process made available to parties by the US judiciary. It argues that section 1782 is subject to a strong presumption in favour of discovery. When a foreign litigant wants discovery, but the foreign tribunal may not, courts typically err on the side of the foreign litigant.
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28

Doug, Jones. Part V Emergency Arbitrators and Interim Relief, 14 Emergency Arbitrators and Court-Ordered Interim Measures: Is the Choice Important? Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198783206.003.0015.

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Parties to a dispute often need urgent relief and may seek interim measures. Interim measures, also known as ‘temporary measures of protection’ or ‘conservatory measures’ are orders by courts or arbitral tribunals directed at the preservation of the status quo until a decision on the merits of the dispute is rendered. Closely related to interim measures is the concept of the emergency arbitrator-an arbitrator appointed post haste upon the application of a party to a dispute to decide an urgent issue that cannot wait until the constitution of the arbitral tribunal to decide it. This chapter considers the emergency arbitrator provisions in the rules of selected arbitral institutions, and the interplay between these provisions and a court’s ability to order interim measures of protection. It discusses the utility of emergency arbitrator provisions in light of issues of enforceability, giving way to both legal and practical implications for the choice between seeking emergency arbitration instead of court-ordered interim measures.
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29

Koutroulis, Vaios. The Prohibition of the Use of Force in Arbitrations and Fact-Finding Reports. Edited by Marc Weller. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780199673049.003.0027.

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This chapter examines the approach used by arbitral tribunals and commissions of inquiry or fact-finding missions with respect to rules governing the use of force after the adoption of the UN Charter in 1945, with emphasis on the right to self-defence and the conditions relating to its exercise. It assesses the legal significance of arbitral awards and fact-finding reports and considers how they have interpreted and applied jus contra bellum—the prohibition of the use of force in international relations and its exceptions. The chapter focuses on two significant arbitration precedents: the Eritrea Ethiopia Claims Commission and an arbitral tribunal constituted under Annex VII to the UN Convention on the Law of the Sea (UNCLOS). Finally, it discusses questions relating to the threshold for the application of jus contra bellum rules, namely Articles 2(4) and 51 of the UN Charter, and whether such rules are applicable to non-state actors.
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30

Gabrielle, Kaufmann-Kohler, Antonietti Aurélia, and Potestà Michele. Part V Remedies and Costs, 24 Interim Relief in Investment Treaty Arbitration. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198758082.003.0024.

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This chapter reviews the requirements for a party to obtain interim relief from an arbitral tribunal, the measures that can be ordered, their nature, and effects. It also considers whether the parties to the dispute can seek interim relief from domestic courts rather than from the arbitral tribunal. The scope of the interim relief available in the context of investor-state disputes is broad enough to meet the parties’ legitimate needs for temporary protection, subject to limitations which may be found in the relevant treaty, such as the ones contained in NAFTA Article 1134. However, applicants are also faced with a high threshold when seeking to establish that the interim relief requested is urgent and needed. This may explain the reluctance of many tribunals to grant interim relief in the context of investor-state arbitration, whether in the International Centre for Settlement of Investment Dispute (ICSID) system or under the United Nations Commission on International Trade Law Rules.
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31

Christine, Chinkin. Part II International Judicial and Arbitral Procedure and Third Parties, 10 Other Third Party Procedures before International Adjudicative Tribunals. Oxford University Press, 1993. http://dx.doi.org/10.1093/law/9780198257158.003.0010.

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32

Annabelle, Möckesch. Part 2 Determining the Applicable Attorney–Client Privilege Standard, 9 Applicable Privilege Standard in Investor–State Arbitration and Comparison with International Commercial Arbitration. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198795865.003.0009.

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In investor–state arbitrations, which are concerned with the resolution of disputes between foreign investors and states parties over the state’s exercise of its public authority in relation to legislative, administrative, or judicial measures, the parties often invoke attorney–client privilege as a defence to document production requests. This chapter therefore examines how arbitral tribunals have determined the applicable attorney–client privilege standard in investor–state arbitration. It reports on several procedural orders and decisions issued by arbitral tribunals constituted under the North American Free Trade Agreement and other bilateral or multilateral treaties. As in these proceedings attorney–client privilege claims often arise together with Cabinet privilege claims, the tribunals’ findings on the applicable Cabinet privilege standard are presented as well. Lastly, the chapter explores whether the solution proposed for international commercial arbitration can also be adopted in investor–state arbitration.
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33

Jeffery, Commission, and Moloo Rahim. 2 The First Procedural Order. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198729037.003.0002.

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This chapter considers the supplementary procedural rules that are typically decided at the outset of an investment arbitration and the process through which those rules come to be. It begins by discussing the procedural issues that parties and arbitral tribunals often see fit to address at the outset, including the procedural timetable, bifurcation, seat (if applicable), location, fees and costs, language, pleadings, discovery, witnesses, expert witnesses, amicus curiae, and confidentiality/transparency. The chapter also examines the process for deciding these procedural issues, noting that the procedure is most often a hybrid of communicating to the tribunal issues agreed by the parties and debating before the tribunal controverted procedural issues, which the tribunal then resolves. The First Procedural Order is the result of the First Procedural Conference.
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34

Schill, Stephan W., Loretta Malintoppi, August Reinisch, Christoph H. Schreuer, and Anthony Sinclair, eds. Schreuer's Commentary on the ICSID Convention. 3rd ed. Cambridge University Press, 2022. http://dx.doi.org/10.1017/9781316516584.

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This unique compendium offers an article-by-article commentary on the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. Providing a comprehensive explanation of the functioning of this important mechanism for the settlement of investor-State disputes, it incorporates the preparatory work, the Convention's text, various rules and regulations adopted under the Convention, the practice of arbitral tribunals under the Convention, and academic writings on the subject. The first and second editions of this Commentary have been relied upon by numerous arbitral tribunals. This third edition follows the same system and approach, but extensive updates and revisions reflect the vast increase in arbitral practice since the publication of the second edition. A number of novel issues that have emerged through this practice are now addressed, making this practice-oriented guide an indispensable tool for anyone dealing with the ICSID Convention. Likewise, the number of contributors to and editors of the third edition has increased.
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35

Mark, Mangan, Reed Lucy, and Choong John. 12 Awards. Oxford University Press, 2014. http://dx.doi.org/10.1093/law/9780199657216.003.0012.

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This chapter presents an overview of the procedure in the granting of awards during Singapore International Arbitration Centre (SIAC) arbitrations. THe term ‘award’ refers to a decision of the arbitral tribunal on the substance of the dispute such as interim, interlocutory, or partial award. SIAC Rule 28 deals with issues relating to the issuance, content, scrutiny, effect, and the publication of awards. SIAC Rule 29 covers the occasions where it is necessary for tribunals to correct or interpret an award, or issue an additional award. Once issued, the interpretation becomes part of the award and as such, binding and enforceable.
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36

Jeffery, Commission, and Moloo Rahim. 10 Statements or Submissions on Costs. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198729037.003.0010.

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This chapter considers the duration and costs of investment arbitrations as well as the procedural mechanics of cost submissions or statements of costs. It first examines the timing, format, and content of cost submissions and statements of costs before discussing the relevant arbitral rules that govern such submissions in International Centre for Settlement of Investment Disputes (ICSID) Convention and ICSID Additional-Facility arbitration proceedings, along with the average amount of such costs. It then explains the UNCITRAL Arbitration Rules on costs submissions, taking into account the average amount of those costs, and the duration of arbitration proceedings. It also analyses how arbitral tribunals have allocated costs in ICSID and UNCITRAL proceedings and highlights the factors deemed relevant by tribunals in those decisions.
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37

Hilary, Heilbron. Part IV Arbitral Procedure and Procedural Misdemeanour, 11 Is International Arbitration Becoming Too Confrontational and Counter-Intuitive? And Some Guidelines as to How Not to Irritate a Tribunal! Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198783206.003.0012.

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International arbitration is becoming increasingly fractious, ill-tempered, and combative, as each side deploys tactics to argue its case. All too frequently, lawyers lose sight of the fact that it is the tribunal whom they need to win over to their cause. Aggravating a tribunal, whether by aggressive and combative advocacy or by an ill-presented case, is counter-productive. This chapter addresses the causes of this growing tendency and how to deal with it from the perspective of both oral and written advocacy and presentation. It suggests that the real problem is a developing culture of using the arena of arbitration as a stage to play out the parties’ anger against each other, using their lawyers as the means to do so. As a response, tribunals, in the first procedural order for the hearing, or appended to it, need to lay down some basic rules.
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38

Jeffery, Commission, and Moloo Rahim. 1 The Law Applicable to Procedural Issues. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198729037.003.0001.

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This chapter examines the various sources of procedural law in investment arbitration and articulates a hierarchy among those sources. It first considers the procedural law selected by the parties to the arbitration, emphasizing the fact that some of the laws selected by the parties impose mandatory rules that cannot then be deviated from, while others are binding, unless the parties later decide on a separate course. It then explains how the appropriate governing rules can be determined when the rules selected by the parties are silent. In particular, it describes the arbitral tribunals' role to fill gaps in the rules and suggests that, in doing so, the tribunals and the parties rely on the context of the applicable procedural rules, certain soft law protocols, and prior arbitral practice for guidance.
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39

Campbell, McLachlan, Shore Laurence, and Weiniger Matthew. Part III Substantive Rights, 9 Compensation. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780199676798.003.0009.

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Chapter 9 examines the obligation upon the State committing the international wrong to make reparation through restitution or monetary compensation. It first considers the international law standards of compensation for expropriation before proceeding to discuss the range of options adopted in practice by arbitral tribunals. It then looks at practical application of the main methods of valuation used to determine the appropriate level of compensation, particularly the ‘discounted cash flow’ method, along with the issue of causation in international law. The chapter concludes with an analysis of five topics that are assuming greater practical importance in the approach of arbitral tribunals to remedies: the award of moral damages in exceptional circumstances; the claimant’s duties of mitigation of loss; the potential for the availability of non-pecuniary remedies; interest; and costs.
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40

Silja, Schaffstein. Part II The Doctrine of Res Judicata in International Commercial Arbitration, 6 Transnational Res Judicata Principles for International Commercial Arbitral Tribunals. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198715610.003.0007.

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This chapter explains principles of the res judicata doctrine for international commercial arbitral tribunals based on transnational law. There are two main values that transnational litigation upholds in determining the scope of the preclusive effects of a prior judgment in one country and the subsequent proceedings in another country. First, a judgment must be accepted in the recognising state with the original effects it would have in the state in which it was first rendered. Thus, the law of the country, where the first judgment was rendered, will determine the judgment’s preclusive effects in the subsequent proceedings. Second, the application of the law of the rendering state should preserve the integrity of the rendering state’s judicial system and that state’s resources.
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41

From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral Investment Court: Options Regarding the Institutionalization of Investor-State Dispute Settlement. Springer Berlin / Heidelberg, 2020.

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42

Gilles, Cuniberti. Ch.1 General Provisions, General Provisions II: Arts 1.4–1.5—Mandatory rules, Art.1.4. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0008.

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This commentary focuses on Article 1.4, which clarifies the relationship between the UNIDROIT Principles of International Commercial Contracts (PICC) and mandatory rules originating from sources external to the PICC. Mandatory rules are rules which cannot be derogated from by the parties, and are therefore mandatory for them. The typical rationale for making certain rules mandatory is to protect weaker parties or the public interest. Mandatory rules can be of two kinds: domestic mandatory rules and international mandatory rules. Art 1.4 covers relevant rules of private international law, choice of law rules applicable in court proceedings, arbitral tribunals, and origin of mandatory rules. It also discusses the applicability of the PICC to international contracts that include an arbitration clause, along with the application of mandatory rules by arbitral tribunals in relation to the doctrine of transnational public policy.
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43

Bungenberg, Marc, and August Reinisch. From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral Investment Court: Options Regarding the Institutionalization of ... Yearbook of International Economic Law). Springer, 2018.

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44

Bungenberg, Marc, and August Reinisch. From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral Investment Court: Options Regarding the Institutionalization of ... Yearbook of International Economic Law). Springer, 2019.

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45

Bungenberg, Marc, and August Reinisch. From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral Investment Court: Options Regarding the Institutionalization of ... Yearbook of International Economic Law). Springer, 2019.

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46

Antonio R, Parra. 8 Aspects of the Early Cases. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198767466.003.0008.

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This chapter focuses on key aspects of the cases brought to ICSID in its first two decades. Section I examines the ways in which successive Secretaries-General handled the registration of requests to institute proceedings and, in particular, their “screening” of such requests. Patterns in the constitution of the conciliation commissions and arbitral tribunals are traced in Section II, as are the first experiences of the Centre with the resignation and challenge of arbitrators. Section III discusses the distinctly pragmatic approaches of arbitral tribunals in this period to jurisdictional issues, especially the requirement of consent. There was controversy in the early 1980s as to the availability, in the context of an ICSID case, of court-ordered provisional measures. The controversy is reviewed in Section IV, which also looks at the first instances of arbitral provisional measures under Article 47 of the ICSID Convention. Section V examines the underlying interpretations of Article 42(1) of the Convention. Three ad hoc committee decisions rendered under Article 52 of the Convention are the subject of Section VI. Most of the few court proceedings for the enforcement of ICSID awards took place in these early years; the proceedings are reviewed in the concluding Section VII.
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47

Katia, Yannaca-Small. Part IV Guide to Key Substantive Issues, 22 Indirect Expropriation and the Right to Regulate: Has the Line Been Drawn? Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198758082.003.0022.

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This chapter focuses on the way in which arbitral tribunals have dealt with indirect expropriation claims based on investment agreements. It also looks at the cross-fertilization with two other sources of jurisprudence which deal with similar issues, under different circumstances and different legal bases, i.e. the US–Iran Claims tribunal and the European Court of Human Rights. The chapter (i) describes the basic concepts of the obligation to compensate for indirect expropriation; (ii) reviews whether and how legal instruments and other texts articulate the difference between indirect expropriation and the right of the governments to regulate without compensation; and (iii) identifies a number of criteria which emerge from jurisprudence and state practice for determining whether an indirect expropriation has occurred, and compensation is due.
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48

Silja, Schaffstein. Part II The Doctrine of Res Judicata in International Commercial Arbitration, Conclusion. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198715610.003.0008.

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This chapter concludes that the questions arising from the doctrine of res judicata in international commercial arbitration is only one aspect of a greater problem — the coordination of jurisdictions between arbitral tribunals and other national, international, and supra-national courts and tribunals. The parallel coexistence of these courts and tribunals, coupled with the increasing complexity of international disputes that involve a multitude of closely related parties, contracts, and issues, will inevitably lead to conflicts of jurisdiction. These conflicts not only raise questions of res judicata, but also of the applicability of other jurisdiction-regulating mechanisms, such as lispendens, forum non conveniens, consolidation, and joinder, as well as the availability of anti-suit and anti-arbitration injunctions of damages for the breach of arbitration agreements.
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49

Michael, Young. Part III International Arbitration Agreements: Issues and Perspectives, 10 Silent Talk: Identifying the Language of an Arbitration When the Arbitration Clause Is Silent. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198783206.003.0011.

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Language is a fundamental part of legal practice: without it, lawyers cannot function. But despite its importance, the applicable language is addressed rarely in a dispute resolution clause. Given its potent impact, the parties often disagree over which language (or languages) should apply where the clause is silent. This chapter considers the tools available to an arbitral tribunal to identify the language of the arbitration and to maintain the applicable language of the proceedings, while affording the parties flexibility in how they present their cases and ensuring that the matter proceeds efficiently. As with all discretions, this exercise must be carried out properly and fairly. In reaching their decisions, tribunals should not be confined by strict presumptions or priorities; they must assess all of the available indicia, weighing each element in the balance.
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Bernardo M, Cremades. Part VII Witnesses and Perjury, 19 The Expert Witness in International Arbitration. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198783206.003.0020.

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This chapter raises the question of whether expert witnesses are necessary or indeed appropriate in international arbitration. The expert’s role in arbitration proceedings is to testify and assist the tribunal. The expert is also a witness, but, in contrast to the legal framework for experts in court proceedings, in international arbitration they do not have to be independent of the parties. The majority of experts appearing before arbitral tribunals are employees or habitual sub-contractors of one of the parties. Regardless of an arbitrator’s background, they will require the support of an expert as they increasingly come into contact with sectors such as construction, energy, telecommunications, and concessions. However, the proliferation of expert witnesses in arbitration proceedings, and above all the phenomenon of the team of experts, have become the cause of confusion and delays.
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