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1
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.
2
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.
6
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.
7
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.
8
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
9
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.
10
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.
11
Chung, Janghwan. "ZF Auto. v. Luxshare: Supreme Court’s Withdrawal of Judicial Assistance for Discovery from Private Arbitration." Journal of International Arbitration 40, Issue 5 (October 1, 2023): 605–32. http://dx.doi.org/10.54648/joia2023025.
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Is the judicial assistance intended for the benefit of ‘foreign or international tribunals’ under 28 USC § 1782 available for private arbitral tribunals? The Supreme Court of the United States says it is not because that assistance is intended only for tribunals vested with governmental authority and private arbitral tribunals lack such authority. This strained reading of section 1782 appears to have been reached to achieve policy objectives, not through rigorous analysis of the statutory provision itself. Although the end the Court sought to achieve is not without merit, the means chosen by the Court to achieve the same will give rise to, among others, the unintended consequence of curtailing international commercial arbitration in contravention of the federal policy favouring arbitration. This is so because the Court ignored the root cause of the problem it sought to solve, namely that section 1782 is available to ‘any interested person’ who is not required to be before any tribunal at all. Instead of trying to solve one problem with the wrong solution, the Court should have closed or Congress should close the loophole in section 1782 so that it may properly function and provide the judicial assistance as originally intended by Congress. Arbitration, arbitral tribunal, discovery, 28 USC § 1782, Hague Evidence Convention, Intel v. AMD, Intel factors
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J. Shaw, Gary, Michael Evan Jaffe, and Lindsey Mitchell. "Exercising Governmental Authority to Claim Section 1782 Assistance: What Does It Mean?" Journal of International Arbitration 39, Issue 6 (December 1, 2022): 863–80. http://dx.doi.org/10.54648/joia2022036.
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On 13 June 2022, the Supreme Court published a highly anticipated decision in two consolidated cases that limited the availability of 28 USC § 1782. The Court ruled (1) that § 1782 was only available to arbitral tribunals exercising governmental (sovereign) authority; and (2) that neither private contract-based arbitral tribunals nor many investor-state arbitral tribunals meet the sovereign authority test. From a broad strokes perspective, the Court’s narrow reading of § 1782 resolved the split among the Courts of Appeals. The decision left open, however, important questions that will no doubt be the focus of future cases. This article will review the § 1782 cases that played out in the Courts of Appeals prior to the Supreme Court’s decision. The article will then examine the June 2022 decision and identify some of the questions left unanswered. international, commercial, arbitration, tribunal, evidence, 1782, comity, statute, circuit split, legislative history, supreme court
13
Bieri, Sandra de Vito. "The application of EU law by arbitral tribunals seated in Switzerland." ASA Bulletin 35, Issue 1 (March 1, 2017): 55–66. http://dx.doi.org/10.54648/asab2017005.
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Arbitral tribunals with seat in Switzerland are required to apply EU law under various conditions: It seems fairly clear that the arbitral tribunal needs to apply EU law, if the parties have chosen the law of an EU member state as lex causae, as EU law forms in this case part of the chosen law. The same applies when the parties have forgone to make a choice of law and the closest connection test results in the application of the law of an EU member state. In case the parties have chosen a third state’s law as lex causae, the arbitral tribunal needs to consider EU law, if a party invokes its application. Last, the arbitral tribunal may in some instances apply EU law ex officio, even if none of the parties have invoked the application of EU law. Although the arbitral tribunal may be required to apply EU law, the failure to apply or the wrong application of EU law does not necessarily result in setting aside of the award by the Swiss Federal Supreme Court. The failure to apply or the wrong application of EU law does not violate public policy. Hence, a challenge of the arbitral award based on art. 190 (2) e PILA will be unsuccessful. This holds also true if the arbitral tribunal decides not to apply EU competition law, as the Swiss Federal Supreme Court does not consider EU competition law part of public policy. The failure to apply EU law by the arbitral tribunal will only then result in a successful challenge of the arbitral award based on art. 190 (2) b PILA, if the arbitral tribunal found that EU law would be applicable to the dispute but denies its jurisdiction to decide the EU law issue.
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Macfarlane, Emma. "The Hague Rules on Third-Party Joinder: A Revised Framework." Michigan Business & Entrepreneurial Law Review, no. 10.2 (2021): 217. http://dx.doi.org/10.36639/mbelr.10.2.hague.
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This paper critically assesses the Hague Rules’ stance on third-party joinder. Third-party joinder is an important feature in business human rights disputes. It is a mechanism that victims of human rights abuses can use to bring claims against corporate defendants where the victims do not otherwise have an underlying agreement on which to base their claim. Keeping in line with traditional conceptions of commercial arbitration, the Hague Rules are grounded in party consent to arbitrate. Conceptions of consent therefore have an outsized impact on the universe of parties who can bring actions against corporations before arbitral tribunals for human rights abuses. The main objective of this paper is to offer an alternative framework of third-party joinder and consent to achieve a better balance between the interests of claimants alleging human rights abuses and corporate defendants. Part I traces the rise of arbitral tribunals as fora for business human rights disputes. Part II outlines the procedural shortcomings of third-party joinder in business human rights cases before arbitral tribunals under the Hague Rules. Part III advocates for a new framework to guide arbitral tribunals when assessing whether to allow requests for third-party joinder.
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Dmitriev, Dmitry, and Sergey Patrakeev. "Russian Arbitral Tribunals Deal with Disputes Related to Real Estate." Business Law Review 32, Issue 10 (October 1, 2011): 257. http://dx.doi.org/10.54648/bula2011063.
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The Russian Constitutional Court has recently ruled on the question of capacity of an arbitral tribunal to consider disputes relating to immovable property, as the result of a dispute may be the transfer of rights to such property which is subject to state registration. The ruling opens the possibility that arbitral tribunals may resolve corporate disputes.
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Zaugg, Niklaus. "Objective scope of res judicata of arbitral awards Is there room for discretion?" ASA Bulletin 35, Issue 2 (May 1, 2017): 319–33. http://dx.doi.org/10.54648/asab2017028.
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In its landmark decision DFT 141 III 229 – also known as the “US law firm decision” –, the Swiss Federal Tribunal confirmed its previously established doctrine on the controlled transfer of a foreign award’s effects (“Kontrollierte Wirkungsübernahme”) when determining the objective scope of res judicata of a foreign arbitral award. The concept implies that the binding effect of a foreign award cannot go beyond the determinations contained in its operative (or dispositive) part. Such narrow approach to res judicata has been criticised by various authors. It is considered inappropriate in the context of international arbitration because arbitrating parties ordinarily wish to have their disputes resolved in a comprehensive manner. Given the lack of any pertinent and authoritative transnational principles, it is further argued that arbitral tribunals should be vested with the power to discretionarily determine the scope of res judicata of a previous award. In doing so, arbitral tribunals are expected to notably take into account the legal traditions and the parties’ expectations involved in a specific arbitration. It is suggested by the author of this article that an arbitral tribunal’s entitlement to discretionarily determine the objective scope of res judicata of a previous award not only conflicts with the provisions of the Swiss lex arbitri but also with the parties’ need for legal certainty and, as the case may be, their interest to have certain aspects of a dispute omitted from a final adjudication. The legitimate interest of parties in having a dispute settled in a comprehensive manner should be addressed by enabling them to flexibly decide what aspects of a dispute they wish to submit to a final adjudication, and at what point in time. The respective intentions of the parties should be communicated to the arbitral tribunal by filing or abstaining from filing corresponding applications for prejudicial declaratory relief.
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Gupta, Ritunjay. "Res Judicata in International Arbitration: Choice of Law, Competence & Jurisdictional Court Decisions." Asian International Arbitration Journal 16, Issue 2 (November 1, 2020): 193–220. http://dx.doi.org/10.54648/aiaj2020021.
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Given the twin goals of finality and efficiency, the doctrine of res judicata has come to be applied, although less frequently, in the international arbitration context as well. However, being largely perceived as a proverbial ‘twilight issue’ in international arbitration, its application is fraught with uncertainties and inconsistencies. Amongst the more compelling concerns regarding the subject matter, this Article tackles the ambiguities around the choice of law analysis for preclusion standards; the doubts regarding the arbitral tribunal’s kompetenz-kompetenz to address the issue; and the peculiar nature of jurisdictional court decisions and its res judicata effect in subsequent arbitral proceedings. Rarely, if ever, does the lex arbitri shed light on the precise standards of preclusion to be applied in a particular case. Instead, the choice of law analysis by arbitral tribunals are guided by a fluid balancing act between varying degrees of private rights and public interests. While the The International Law Association (ILA) Recommendations (Resolution No. 1/2006) do come close to a purported international standard, its limited acceptability within the community and lean adoptability across jurisdictions, brings to the fore the uncertainties attached to the doctrine itself. Confusion further ensues when the authority of the tribunal to decide on its own jurisdiction is brought into question on confronting the defense of res judicata. While the New York Convention’s mandate of recognition of awards empowers the Courts to afford res judicata effect to a prior adjudication, the same conflicts with the arbitral tribunal’s own competence to address arguably procedural arbitrability issues such as this. These concerns amplify manifold when an arbitral tribunal encounters a prior Court’s decision regarding the tribunal’s jurisdiction, including the question of non-arbitrability of the disputed claim. In the absence of exacting standards and principles to deal with any of these issues, different tribunals have been discharging their own brand of the doctrine’s broad interpretation. This Article expounds the existing literature on the subject, and thereafter, attempts to analyse each of these complex and controversial issues to better equip practitioners and arbitrators when faced with such concerns; at least until universal conformity is achieved through promulgations bordering a truly international standard. Res Judicata, Claim Preclusion, Choice-of-Law, Kompetenz-Kompetenz, Jurisdictional Decisions
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Gidoin, Anne-Sophie. "L« étape préalable » dans le nouveau droit de larbitrage et de la médiation OHADA." ASA Bulletin 36, Issue 3 (September 1, 2018): 578–96. http://dx.doi.org/10.54648/asab2018055.
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The new Uniform Arbitration Act, the new Rules of Arbitration of the Common Court of Justice and Arbitration (Abidjan) and the new Uniform Mediation Act, adopted by the Council of Ministers of 17 OHADA Member States of Western and Central Africa, entered into force on 15 March 2018. All three texts expressly grant arbitral tribunals the power to suspend the arbitral proceedings, if a party rightfully claims noncompliance with a mandatory pre-arbitral procedure, as may be imposed by a multi-tier dispute resolution clause. In that case, the non-compliance can be cured without the arbitral tribunal having to dismiss the claims as non being (yet) admissible. Article 8-1 of the revised Uniform Arbitration Act, Article 21-1 of the revised Arbitration Rules of the Common Court of Justice and Arbitration, and Article 15 of the Uniform Mediation Act allow an arbitral tribunal to fix a time limit for the parties to comply with the pre-arbitral procedure, after which the arbitral proceedings will resume, unless the parties were indeed able to settle their dispute. This truly innovative provision is one of the first of its kind in modern arbitration law worldwide. It addresses in a pragmatic cost-effective manner the growing number of objections (as to the tribunal’s jurisdiction and/or the admissibility of the claims) related to the issue of compliance with mandatory pre-arbitral steps in multi-tier dispute resolution clauses.
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Yaffe, Nathan. "Transnational Arbitral Res Judicata." Journal of International Arbitration 34, Issue 5 (October 1, 2017): 795–833. http://dx.doi.org/10.54648/joia2017038.
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Commercial arbitral awards are universally recognized to give rise to res judicata, but confusion reigns over what law applies to the res judicata effect of a prior arbitral award asserted before a subsequent tribunal. National res judicata laws diverge on key questions such as the availability of issue estoppel and the construction of the ‘triple identity’ test. Yet the normal tools used to manage divergence in potentially applicable laws – choice of law and codification – have failed to work when it comes to the res judicata effect of awards. I argue the answer is to adopt a transnational approach to res judicata in arbitration. Although this approach has support in principle, questions remain about how it would work in practice. I propose that a modified version of Gaillard’s ‘transnational rules method’ contains the seeds of a promising answer. Specifically, tribunals could look to both other commercial tribunals’ awards, as well as International Centre for Settlement of Investment Disputes (ICSID) and International Court of Justice (ICJ) case law on res judicata, to develop a sui generis transnational preclusion standard for international arbitration. This is consistent with informal practices arbitrators have developed with respect to other interstitial issues where choice of law processes do not yield satisfactory results. Finally, I evaluate the implications of taking this approach, as well as its prospects for success.
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Leventhal, Alexander G. "Threading the Sovereign’s Needle." Brill Research Perspectives in International Investment Law and Arbitration 3, no. 4 (June 28, 2021): 1–59. http://dx.doi.org/10.1163/24055778-12340010.
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Abstract An investor-State tribunal enjoys significant authority once a dispute is referred to it. Among a tribunal’s unquestioned powers is the power to order interim relief—including with respect to the most sovereign of a State’s conduct: its enforcement of its criminal law. In exercising these powers, an investor-State tribunal goes beyond the role traditionally assigned to it—i.e. to award damages for prejudice caused by a treaty breach—and dictates sovereign conduct. While the applicable treaty, arbitral rules, or law of the seat may not offer specific instructions, arbitral tribunals deciding on such interim relief requests can rely on a significant body of case law. That case law reflects a coherent approach to a thorny question, even though outcomes may vary. This article will deconstruct that coherent approach—from the foundations of the tribunal’s authority to order interim relief in respect to pendant criminal proceedings, to the rights that such relief may protect, to the requirements for ordering such relief, as well the effect of such relief and its duration in addition to any recourse for non-compliance.
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Lando, Massimo, and Nilüfer Oral. "Jurisdictional Challenges and Institutional Novelties – Procedural Developments in Law of the Sea Dispute Settlement in 2020." Law & Practice of International Courts and Tribunals 20, no. 1 (March 29, 2021): 191–221. http://dx.doi.org/10.1163/15718034-12341444.
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Abstract In 2020, law of the sea tribunals rendered one decision on jurisdiction and decided one case on the merits. First, the arbitral tribunal in the Azov Sea and Kerch Strait dispute dismissed the jurisdictional objections raised by the Russian Federation and thus will proceed to hear the merits of Ukraine’s claims. Second, the arbitral tribunal in the Enrica Lexie Incident case found, after upholding its jurisdiction in relation to the dispute before it, that the Italian marines who had shot an Indian fisherman in India’s Exclusive Economic Zone were entitled to immunity under international law and that Italy had breached certain provisions of the United Nations Convention on the Law of the Sea (UNCLOS). These two arbitral awards have confirmed and developed certain trends in the jurisprudence of law of the sea tribunals. In addition, a novelty in 2020 was the conclusion of a Model Agreement between Singapore and the International Tribunal for the Law of the Sea (ITLOS), for the latter to be able to discharge its judicial business in Singapore. Last, the Meeting of the States Parties to UNCLOS elected five new members of ITLOS and re-elected two.
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Awuni, Peter Apuko, and Nana Ama Agyapong. "An Analysis of Judicial Intervention and Assistance for Arbitral Proceedings: A Look at the Courts of Ghana." International Journal of Current Research in the Humanities 27, no. 1 (April 30, 2024): 1–25. http://dx.doi.org/10.4314/ijcrh.v27i1.1.
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Without the support of national courts, arbitral tribunals are unable to function properly, particularly in situations involving the enforcement of arbitration agreements, procedural orders, and arbitral awards, among other things. The arbitral tribunal cannot compel a party to carry out a task, or obligation, or fulfil an obligation. The court has the authority to order a party to carry out an order and can also impose harsh consequences for contempt of court, such as fines, imprisonment, or other punishments. Unless the issue(s) before the court are non-arbitrable pursuant to section 1 of the Alternative Disputes Resolution Act, 2010. The courts of Ghana have the capacity and jurisdiction to enforce applications by a party for arbitration. The New York Convention, which also grants national courts of contracting states authority to hear cases involving the enforcement of arbitration agreements, has been ratified and domesticated by Act 798 under the First Schedule. The paper argues that even though national courts are permitted by statutory laws and international conventions to assist in arbitral proceedings, courts must exercise some restraint and must not be in a hurry to inherit jurisdiction and interfere with disputes before arbitration, since arbitration proceedings are considered alternative methods of resolution of disputes to litigation, and unless expressly provided for and in obvious instances devoid of any controversy. A purported judicial assistance should not be used to whittle away the function of arbitral tribunals and render nugatory the benefits that are to be derived from these proceedings as it would defeat the concept of Alternative Dispute Resolution (ADR). The paper concludes by suggesting that unnecessary interventions by some national courts including Ghana appear to be interfering with party autonomy as well as the competence of the arbitral tribunal, hence, hindering the purpose for which the Alternative Dispute Resolution Act 2010 was enacted and other supporting legislations and conventions as an alternative to litigation which is non-voluntary, expensive, acrimonious and complicated.
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Bulovsky, Andrew. "Promises Unfulfilled: How Investment Arbitration Tribunals Mishandle Corruption Claims and Undermine International Development." Michigan Law Review, no. 118.1 (2019): 117–47. http://dx.doi.org/10.36644/mlr.118.1.promises.
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In recent years, the investment-arbitration and anti-corruption regimes have been in tension. Investment tribunals have jurisdiction to arbitrate disputes between investors and host states under international treaties that provide substantive protections for private investments. But these tribunals will typically decline to exercise jurisdiction over a dispute if the host state asserts that corruption tainted the investment. When tribunals close their doors to ag-grieved investors, tribunals increase the risks for investors and thus raise the cost of international investment. At the same time, the decision to decline jurisdiction creates a perverse incentive for host states to turn a blind eye to corruption. Together, these distorted incentives hinder developmental goals and undermine the fight against corruption. To correct these problems, this Note proposes a framework to guide arbitral tribunals when faced with a corruption-tainted dispute. Specifically, this Note argues that when both parties participate in corruption, arbitral tribunals should invoke equitable estoppel to accept jurisdiction over the dispute. When considering the corruption claims, investment tribunals should use a contributory-fault approach that evaluates each party’s role in the corrupt act to determine the final award. This framework not only helps align the investment-arbitration and anticorruption regimes but also advances developmental objectives.
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Rachkov, Ilia V. "Concept of “Legitimate Expectationsˮ of Foreign Investors in the International Investment Arbitration Practice." Moscow Journal of International Law, no. 1 (March 30, 2014): 196–220. http://dx.doi.org/10.24833/0869-0049-2014-1-196-220.
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Based on the practice of international investment arbitral tribunals this article outlines the notion of “legitimate expectations of investors”. This notion is not used in bi- is not used in biand multilateral international investment treaties of Russia. However, as follows from the practice of international investment arbitral tribunals, legitimate expectations of investors constitute an integral part of the standard of fair and equitable treatment of foreign investor by the state hosting foreign investments. Only if a state gives specific representations and warranties to the investor, this creates legitimate expectations of the investor. If the state failed to perform such representations and warranties, it will not meet legitimate expectations of the foreign investor and, therefore, violated its obligation to treat such investor fairly and equitably. This may trigger liability of such state under international law towards the foreign investor, should he fi le a claim against such state with an international investment arbitral tribunal.
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McMULLAN, SAM. "Holding Counsel to Account in International Arbitration." Leiden Journal of International Law 24, no. 2 (May 6, 2011): 491–512. http://dx.doi.org/10.1017/s0922156511000112.
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AbstractCounsel are regulated the world over in their dealings with a court of law through the enforcement of ethical duties that are owed by them. With the increased prevalence of arbitration in resolving disputes internationally, the question then arises: how are counsel kept in check when appearing before an arbitral tribunal? The issues involved are magnified when one considers the question in the context of international arbitral tribunals. This paper considers these issues by analysing them in three parts. First, is ethical regulation necessary in international arbitration? Second, does an arbitral tribunal have jurisdiction to consider and enforce ethical obligations owed to it by counsel? Third, what ethical obligations should be applied to counsel?
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Oellers-Frahm, Karin. "Lawmaking Through Advisory Opinions?" German Law Journal 12, no. 5 (May 1, 2011): 1033–56. http://dx.doi.org/10.1017/s2071832200017211.
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International courts and tribunals are firstly and particularly conceived to settle legal disputes between States and/or other organs or individuals admitted as parties according to the statute of the respective court by means of a binding decision. An advisory function is not inherent in the function of a judicial body, but has to be transferred expressly upon a court or tribunal in the constituent instrument. For non-standing judicial bodies, i.e., arbitral tribunals, an advisory function is rather unusual, but not altogether ruled out: The parties to acompromismay empower the tribunal to give an advisory opinion.
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de Herdt, Sandrine. "Admissibility of Counterclaims: The Practice of UNCLOS Tribunals." Journal of International Dispute Settlement 13, no. 1 (February 3, 2022): 79–97. http://dx.doi.org/10.1093/jnlids/idac002.
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Abstract This article considers the admissibility and procedural aspects relating to the filing of counterclaims in international law, with particular reference to bodies exercising jurisdiction under the United Nations Convention on the Law of the Sea —namely the International Court of Justice, International Tribunal for the Law of the Sea and Arbitral Tribunal instituted under Annex VII to this Convention. Counterclaims in the context of UNCLOS tribunals raise specific questions. For instance, the ambiguity concerning the rules applicable to counterclaims presented in Annex VII proceedings has recently been dealt with by an Annex VII Arbitral Tribunal in The ‘Enrica Lexie’ Incident case. The approach of the Tribunal needs careful consideration. In the M/V “Virginia G” Case, the approach taken by ITLOS questions the manner of interpretation of the ‘direct connection’ requirement in the context of UNCLOS cases. For this purpose, the present study of counterclaims provides a comparative analysis of the rules and practices of the three aforementioned bodies.
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CHANG, YEN-CHIANG. "How Does the Amicus Curiae Submission Affect a Tribunal Decision?" Leiden Journal of International Law 30, no. 3 (April 24, 2017): 647–60. http://dx.doi.org/10.1017/s0922156517000231.
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AbstractIn the South China Sea Arbitration initiated by the Philippines against China, the Chinese (Taiwan) Society of International Law (CSIL) submitted an amicus curiae brief to the Annex VII arbitral tribunal established in accordance with United Nations Convention on the Law of the Sea (UNCLOS). This article first analyzes the definition and legal nature of amicus curiae status, then introduces cases involving amicus curiae in the International Court of Justice (ICJ) and UNCLOS dispute settlement mechanisms. By analyzing relevant statutes and rules of procedure, this article assesses the acceptance of amicus curiae submissions by international courts or tribunals, in different dispute settlement mechanisms. Finally, the article describes the significance of the amicus curiae brief submitted by CSIL to the arbitral tribunal, concluding that the South China Sea Arbitral Tribunal did take the amicus curiae submission into account, but exercised caution in its consideration.
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Monebhurrun, Nitish. "Gold Reserve Inc. v. Bolivarian Republic of Venezuela: Enshrining Legitimate Expectations as a General Principle of International Law?" Journal of International Arbitration 32, Issue 5 (October 1, 2015): 551–61. http://dx.doi.org/10.54648/joia2015026.
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In recent years, arbitral tribunals have frequently referred to the concept of legitimate expectations when analyzing a state’s obligation to provide fair and equitable treatment. Indeed, an investor’s legitimate expectations have become so central to the fair and equitable treatment obligation that the latter is now rarely invoked without reference to the former. Notwithstanding the increasing importance of this concept, however, the legal nature of legitimate expectations is still unclear. A minority of arbitral tribunals have categorized legitimate expectations as a general principle of international law. This trend was followed in the recent award in Gold Reserve Inc. v. Bolivarian Republic of Venezuela. This note examines the legal analysis of the Gold Reserve tribunal, before concluding that—if understood in a narrow sense—the concept of legitimate expectations can indeed be understood as a general principle of international law.
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Sentani, Rachel Georghea, and Mathijs Ten Wolde. "The Legal Policy of Executability in the International Arbitral Tribunal Decision for Settlement of Investment Disputes." BESTUUR 9, no. 2 (November 24, 2021): 144. http://dx.doi.org/10.20961/bestuur.v9i2.54451.
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<div><table cellspacing="0" cellpadding="0" align="left"><tbody><tr><td align="left" valign="top"><p class="AbstractText">The growing number of investment disputes indicates more challenging and controversial matters in the various arbitration practices. However, the International Centre for the Settlement of Investment Disputes (ICSID) rules do not entirely solve the problem in the arbitration process. This study aims to explain how the ICSID tribunal’s inherent reconsideration power can be exercised to “fill the gap” in arbitration proceedings. This study concludes that it can be enforced under Article 44 of the ICSID Convention, which decides the question submitted to the tribunal that the ICSID Convention does not cover. Second, in completing this study, the wording of Rules 19 of Arbitration Rules gives an almost similar order to the tribunals in the case of absence in the conduct of proceedings. Third, under Rule 38 (2) Arbitration Rules, the tribunals can exercise the reconsideration power when discovering new facts that decisively affect the case's outcome.</p></td></tr></tbody></table></div>
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Bradshaw, Robert. "How to Obtain Evidence from Third Parties: A Comparative View." Journal of International Arbitration 36, Issue 5 (September 1, 2019): 629–58. http://dx.doi.org/10.54648/joia2019031.
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Obtaining evidence from third parties poses a unique problem in international arbitration. Unlike litigation, the consensual and private nature of arbitration means that tribunals lack the authority to compel third-party disclosure given to many State courts. Yet even if they are not subject to the tribunal’s jurisdiction, third parties to the proceedings may still possess valuable evidence. This article considers the practical options for obtaining evidence from third parties, whether through requests by the arbitral tribunal itself or judicial assistance from State courts. In the latter case, national laws must balance the interest of supporting arbitration against the risks of judicial interference and the potential burden of disclosure on third parties, and resolve this dilemma in very different ways. Given the lack of uniformity on judicial assistance, and the fact that evidence is frequently located in a different jurisdiction to the arbitral seat, practitioners may make strategic use of procedures such as those under US federal law to gain the benefit of third-party evidence
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Gan, Kexin. "Jurisprudential Analysis of Precedents Invoked in International Investment Arbitration." Law and Economy 2, no. 8 (August 2023): 49–58. http://dx.doi.org/10.56397/le.2023.08.06.
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With the increase of international investment arbitration cases and the development of arbitration practice, it is more common for arbitral tribunals to invoke precedents to explain the meaning of clauses and make judgments. However, many problems need to be solved in the process of invoking precedents. This paper starts from the jurisprudential analysis of invoking precedent in investment arbitration, analyzes the reasons why it is difficult for the arbitral tribunal to set aside it in practice on the basis of distinguishing the nature of invoking precedent, and then points out the doubts about the legality of the award made by invoking precedent, the intensification of the contradiction between the accuracy and consistency of the award results, and the resulting issues of the will of the respondent State. After analyzing the causes of these problems, the paper proposes to support the arbitral tribunal’s act of invoking precedents on the basis of improving the sources of international law, and strengthen the States parties’ interference in the interpretation of treaties by various methods, so that precedents can be applied more reasonably in international investment arbitration, and at the same time avoid the adverse effects of its improper application on international investment arbitration.
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Bortolotti, F. "The UNIDROIT Principles and the arbitral tribunals." Uniform Law Review - Revue de droit uniforme 5, no. 1 (January 1, 2000): 141–52. http://dx.doi.org/10.1093/ulr/5.1.141.
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Li, Xinze. "Role of International Arbitration in Resolving International Disputes and Analysis of Examples." Lecture Notes in Education Psychology and Public Media 44, no. 1 (April 18, 2024): 90–96. http://dx.doi.org/10.54254/2753-7048/44/20230085.
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The international community often uses international arbitration to resolve international disputes, and in arbitration, the parties often challenge the jurisdiction of the arbitration. This paper first discusses the three characteristics of international arbitration and four main types of international arbitration public organizations and then addresses the issues associated with the jurisdiction of international arbitration. In this part, it includes the definition as well as the scope of jurisdiction, and the factors considered in establishing it are mentioned, also the current problems of jurisdiction. In the second part, the paper discusses and analyzes todays jurisdictional disputes through four international arbitration cases related to territory and sea. These cases discuss the conditions for the use and scope of compulsory jurisdiction and the treatment of arbitrations traditionally outside the jurisdiction of the court by a particular court are addressed, and the cases also deal with the problem of who decides if the arbitral tribunal has jurisdiction. About final section, discusses by way of example, the gradual expansion of arbitration jurisdiction today and the many problems that may exist as a result of this trend, such as the pressures placed on arbitrators and arbitral tribunals and implications for the nature of arbitral tribunals.
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Groselj, Luka. "Stay of arbitration proceedings Some examples from arbitral practice." ASA Bulletin 36, Issue 3 (September 1, 2018): 560–77. http://dx.doi.org/10.54648/asab2018054.
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This article outlines a number of situations, illustrated by practical and thus far unpublished cases, in which parties requested arbitral tribunals to decide on a stay of the arbitration proceedings. The most frequently invoked reason that would justify a stay is the existence of on-going parallel proceedings. A number of other circumstances can also lead the parties to apply for a stay, e.g., pending payment of security for costs or clarification of the opposing party’s representation. As the reviewed cases demonstrate, arbitral tribunals have no legal obligation to grant a stay and exercise a full and unfettered discretion to decide whether a stay request is well-founded. In principle, a stay will only be granted if exceptional reasons or circumstances exist. There are four guiding criteria that would be generally taken into account by arbitral tribunals when seized with a stay request. First, the external circumstances must have a clear impact on the arbitration. Second, the interests and intentions of the parties to the arbitration must be assessed with due regard to the principles of fairness and due process. Third, a stay should not negatively affect procedural efficiency. Finally, arbitral tribunals must ensure that the proceedings will be conducted without any undue delay.
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Calamita, Nicolas Jansen, and Elsa Sardinha. "The Bifurcation of Jurisdictional and Admissibility Objections in Investor-State Arbitration." Law & Practice of International Courts and Tribunals 16, no. 1 (June 21, 2017): 44–70. http://dx.doi.org/10.1163/15718034-12341341.
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The practice of arbitral tribunals is notably consistent with respect to articulating the fundamental values which need to be balanced in deciding whether to bifurcate preliminary objections with respect to jurisdiction or admissibility. Moreover, there is substantial consensus on the issues or factors which ought to be evaluated by arbitral tribunals exercising their discretion under the relevant rules. What the decisions appear to lack, however, is rigorous evaluation of the likely time and costs effects of the decision to bifurcate or not. Ensuring that the parties produce information relevant to the decision whether to bifurcate rests with tribunals and the way in which they manage the proceedings before them. Tribunals ought not rely upon the parties to produce such information on their own. Instead, tribunals can and should proactively request such information in order to better carry out their judicial function. Improving the analytical rigour and depth of the analysis behind bifurcation decisions would not only improve tribunals’ conclusions, but also bolster the legitimacy of those decisions.
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Ryan, Margaret Clare. "Glamis Gold, Ltd. v. The United States and the Fair and Equitable Treatment Standard." McGill Law Journal 56, no. 4 (September 13, 2011): 919–58. http://dx.doi.org/10.7202/1005849ar.
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This article critiques the arbitral tribunal’s decision in Glamis Gold, Ltd. v. The United States of America on the basis of its interpretation of the fair and equitable treatment standard (FET) owed by state parties to foreign investors under NAFTA article 1105. Part I outlines the post-WWII development of the FET standard in relation to the restrictive, customary international law of minimum standard of treatment (MST). The author traces the expansive treatment of the FET standard by tribunals in both bilateral investment treaty and NAFTA disputes. Despite a binding Free Trade Commission Note of Interpretation limiting the scope of article 1105, NAFTA tribunals had consistently interpreted the FET standard more broadly until the award in Glamis. Part II evaluates the tribunal’s reasoning in Glamis, arguing that it departs from a growing body of jurisprudence on the FET standard under NAFTA without sufficient justification. The author also criticizes the tribunal’s decision to place an unprecedented evidentiary burden on the claimant by requiring proof of both state practice and opinio juris of the FET standard. The conclusion suggests that the decision of the tribunal in Merrill & Ring Forestry L.P. v. Canada may provide a better approach to balancing governments’ legitimate regulatory objectives and foreign investors’ treaty rights.
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Prytyka, Yu, and D. Prytyka. "NEWLY REFORMED PROCEEDINGS OF THE ARBITRATION AWARDS REVIEW AND INTERNATIONAL COMMERCIAL ARBITRATION AWARDS APPEAL IN CIVIL PROCEDURAL LEGISLATION OF UKRAINE." Bulletin of Taras Shevchenko National University of Kyiv. Legal Studies, no. 110 (2019): 29–35. http://dx.doi.org/10.17721/1728-2195/2019/3.110-6.
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This article deals with the novelties of the reformed procedural legislation of Ukraine on appealing the decision of arbitration court and international commercial arbitration, as well as on new approaches to determining the legal nature of the proceedings in cases of appealing arbitration awards. At the same time, this study shows that the specific practical problems of a unified approach to terminology absence, in particular, "appeal" by arbitral tribunal or "challenge" by international commercial arbitration, still remain. In this article the problems of determining the objects of appeal and the expansion of the range of subjects of appeal against the decisions of arbitral tribunals, as well as the disputable issues, determining the jurisdiction of this category of cases are also considered. Special attention is paid to the examining the procedure for reviewing applications for annulment of decisions of the arbitral tribunal and international commercial arbitration, in particular the initial stage of production, time limits for challenging the arbitration award. Taking this into account, authors identify the ways to resolve the abovementioned practical problems, as well as the prospects for further reform of the judicial review institution over the enforcement of arbitral tribunals and international commercial arbitration decisions. In conclusion, authors prove, that the activity of national courts does not include the revision of the decisions of arbitration courts and international commercial arbitrations, since national courts do not check the legality and validity of the decisions; they do not review the substantive decision. In this case we consider a special mechanism for the control over the abuse of arbitrators' powers granted to them by law and by the parties to the arbitration agreement during the dispute resolution.The purpose of an appeal is to provide the interested party with the opportunity to apply limited judicial review of the arbitral award.
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Caron, David D. "The ILC Articles on State Responsibility: The Paradoxical Relationship Between Form and Authority." American Journal of International Law 96, no. 4 (October 2002): 857–73. http://dx.doi.org/10.2307/3070682.
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The adoption by the International Law Commission (ILC) in 2001 of its articles on state responsibility is an achievement that presents a paradox. This essay is about the form and authority of the articles, and the paradox that they could have more influence as an ILC text than as a multilateral treaty. The essay addresses the questions of the appropriate authority to be given an ILC text, why undue influence may be attributed to an ILC text (particularly by arbitral tribunals), and how an arbitral tribunal should approach interpreting and applying the articles on state responsibility.
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Flores Barraza, Eusebio F., and Yesenia Gastelum Ortega. "El TLCAN, un balance a 20 años de vigencia y desde lo procesal." BIOLEX REVISTA JURIDICA DEL DEPARTAMENTO DE DERECHO 12 (August 19, 2019): 51–62. http://dx.doi.org/10.36796/biolex.v12i0.79.
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En el presente trabajo encontraremos un breve recorrido histórico, producto de las decisiones de los tribunales arbitrales que han resuelto en 10 años de del NAFTA (aunque ya cumplió 21 años); lo que nos muestra un buen indicador de: hacia dónde vamos y cómo vamos en el país con respecto a USA y Canadá Abstract. Inside this dissertation we find a brief historical product of the decisions of arbitral tribunals that have been resolved in 10 years of NAFTA (although, it turned 21); which shows us a good indicator about: where we're going and how we're going in our country respect to USA and Canada Résumé. Au present travail nous trouverons un petit voyage histotrique, produit des desisions des tribunaux arbitraux qu'ils ont résolus dans 10 ans du NAFTA (maintenant, il a 21ans); ce qui nous montre un bon indicateur de: oú nous allons et comment nous allons en notre pay par rapport á les Etats-Unis et Canada.
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Mirzayev, Ruslan. "International Investment Protection Regime and Criminal Investigations." Journal of International Arbitration 29, Issue 1 (February 1, 2012): 71–105. http://dx.doi.org/10.54648/joia2012004.
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Over the past few years there have been many allegations that states abuse their police powers to escape their international obligations before foreign investors. In particular, it has been alleged that states initiate criminal proceedings in order to escape payment of compensation for expropriation, hamper arbitral hearings or punish foreign investors. This article attempts to find a solution to the problem of the abuse of police powers. Such a study is important, because the abuse of police powers can damage the whole international framework for protecting foreign investments. The findings from this article provide evidence that there are many principles of international law that international arbitral tribunals have applied when dealing with criminal proceedings initiated by host states against foreign investors. This article draws a conclusion that the principles of international law can substantially prevent the abuse of police powers by states when dealing with foreign investors. This article recommends that arbitral tribunals need to determine the intent of states initiating criminal proceedings against foreign investors. After arbitral tribunals determine that the states initiated criminal proceedings in good faith, they should balance the legitimate interests of the international investment protection regime and the arbitral proceedings against the rights of the host states to investigate crimes within their territories.
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Tamada, Dai. "Applicability of the Excess of Power Doctrine to the ICJ and Arbitral Tribunals." Law & Practice of International Courts and Tribunals 17, no. 1 (June 27, 2018): 251–70. http://dx.doi.org/10.1163/15718034-12341379.
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Abstract The problem with regard to the excess of power doctrine, one of the most controversial issues in the procedure of international courts and tribunals, was invoked in certain recent cases, such as the Bosnian Genocide case and the South China Sea case. To solve this problem, it is necessary to examine two relevant legal notions: the principle of competence-competence; and the principle of res judicata. First, the principle of competence-competence has been regarded as a relative power of arbitral tribunals in the sense that it is limited by the application of the rules of treaty interpretation. This means that there are possibilities, in the substantive sense, of an excess of power even when the principle of competence-competence is applied. Second, the international jurisprudence has shown that the force of res judicata can be excluded by a post-award agreement of the parties. Thus, it is possible, substantively and procedurally, to examine the possibility of an alleged excess of power having been committed by an arbitral tribunal and this understanding has been accepted by the ICJ in its jurisprudence. On the contrary, the ICJ has denied the possibility of an excess of power by itself, on the basis of the absolute power of competence-competence and the principle of res judicata. Here, several problems remain unsettled with regard to the difference between the possibility of an excess of power by ad hoc arbitral tribunals and the possibility of an excess of power by the ICJ.
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Titi, Catharine. "Are Investment Tribunals Adjudicating Political Disputes?" Journal of International Arbitration 32, Issue 3 (May 1, 2015): 261–88. http://dx.doi.org/10.54648/joia2015011.
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Conceived from its inception as a tool for the depoliticization of disputes involving a foreign investor and a sovereign state, Investor-State Dispute Settlement (ISDS) has emerged as a popular alternative to state justice and diplomatic protection and it has evolved into the centrepiece and guarantor of the international system of investment protections. And yet, despite the common perception of its neutrality as a forum for the non-political resolution of disputes, the scope of subject matters that fall within the purview of arbitral control and the utilization of political means by states and investors alike in order to interfere with or influence the arbitral process shed light on some unusual aspects of investment arbitration and reveal that ISDS has been heading down a trajectory of repoliticization.
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Parlett, Kate. "Jurisdiction of the Arbitral Tribunalin Philippines V.China Under UNCLOS and in the absence of China." AJIL Unbound 110 (2016): 266–72. http://dx.doi.org/10.1017/s2398772300009144.
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It is not uncommon for decisions of international tribunals to be reported in the pages of the Washington Post or feature on the BBC News website. It is rather less common for awards to feature on the giant screens of New York’s Times Square. But less than two weeks after the Arbitral Tribuna lunder Annex VII to the United Nations Convention on the Law of the Sea issued its Awardin Philippines v.China, a three-minute video featuring China’s position was broadcast repeatedly on the screen better known forbroadcasting New Year’s Eve festivities than argumentation on the competence of international tribunals. The video asserted that China’s “indisputable sovereignty over [the South China Sea islands] has sufficient historic and legal basis” and that “the Arbitral Tribunalvainly attempted to deny China’s territorial sovereignty and maritime rights and interests in the South China Sea.” It further stated that “China did not participate in the illegal South China Sea arbitration, nor accepts the Awardso as to defend the solemnity of international law.” This latter statement goes to the very heart of the Arbitral Tribunal’s jurisdiction under the 1982 United Nations Convention on the Law of the Sea (the Convention) and its competence to decide the case despite China’s nonparticipation in the proceedings.
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Tarawneh, Mosleh, Jalal Alqhaiwi, and Firas Al Malahmeh. "Consent Awards and the Supervisory Role of Judiciary: Analytical Comparative Study." Jordanian Journal of Law and Political Science 14, no. 1 (March 30, 2022): 187–257. http://dx.doi.org/10.35682/jjlps.v14i1.339.
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This study examines the consent arbitral awards and the possiblity of applying to them the same conditions, rules and effects of ordinary arbitral awards. The study is divided into two main sections: Section one analyzes the legal framework of consent arbitral awards; their definition, purpose and the powers of arbitral tribunals to issue them as being originated from the parties’ consent. This is important in the light of some illegal practices of some disputants who may utilize such awards to cover such practices. The second section deals with the judicial review of consent awards either through annulment or enforcement proceedings under national arbitration laws and international conventions, and in particular the New York Convention of 1958 or the Washington Convention of 1965. This study concludes that the Consent Arbitral Awards play an active role in keeping the good relations between the disputants while having the same status and effects of ordinary arbitral awards. The study invites arbitral tribunals to play a more scrutinizing role of the settlement agreements before issuing the in-consent awards in order to avoid the misuse of the arbitral process as a cover of illegal practices.
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Honlet, Jean-Christophe. "The IBA Guidelines on Party Representation in International Arbitration." Journal of International Arbitration 30, Issue 6 (December 1, 2013): 701–9. http://dx.doi.org/10.54648/joia2013044.
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The IBA Guidelines on Party Representation in International Arbitration address a variety of issues of principle and practice regarding the conduct of Party representatives in international arbitration. Rather than constituting a code of ethics, they attempt to promote certain 'international best practices' regarding such questions as ex parte communications, submissions to the arbitral tribunal, document production, witnesses and experts, without prejudice to the application of mandatory rules that may locally apply to Party representatives. A specific section of the Guidelines is devoted to 'remedies for misconduct' that may be applied by arbitral tribunals, an area which had more traditionally belonged to the realm of domestic courts and local bar associations.
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Reinisch, August, and Christina Knahr. "Transparency versus Confidentiality in International Investment Arbitration – The Biwater Gauff Compromise." Law & Practice of International Courts and Tribunals 6, no. 1 (2007): 97–118. http://dx.doi.org/10.1163/156918507x193131.
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AbstractRecent years have seen a trend towards increasing transparency in international investment arbitration. This trend has been reflected in arbitral practice and in the amendments to the ICSID Arbitration Rules in 2006, which now expressly allow for participation of non-disputing parties as amicus curiae. Still more problematic, however, is the publication of arbitral documents, which has recently been controversial in Biwater Gauff v. Tanzania. This paper will discuss the core provisions on the publication of documents of the UNCITRAL Arbitration Rules, the ICSID Arbitration Rules and NAFTA Chapter 11. It will analyze the reasoning and the findings of the Biwater Tribunal in this regard as well as the pertinent practice of previous investment tribunals. Important policy issues underlying the decision of the Biwater Tribunal will also be analyzed.
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Göksu, Tarkan. "Schiedsgerichtlicher Instanzenzug Welches Verfahren bei Rechtsmitteln an ein Oberschiedsgericht?" ASA Bulletin 34, Issue 3 (August 1, 2016): 606–28. http://dx.doi.org/10.54648/asab2016051.
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An appeal to another arbitral body within an arbitration proceeding is unusual and, relative to the number of arbitration disputes, exceptional. This phenomenon is therefore barely regulated by law, rarely considered by arbitration rules and only ever mentioned incidentally at most by scholars. As a result, the most important questions relating to internal appeals, as far as they can be identified, remain largely unanswered. It seems that two legal issues present themselves: (1) which rules govern the arbitral appeal proceedings in the absence of any agreement on this, for example, as regards the time limit for the making of an appeal? and (2) which lex arbitri is applicable if the first and second instance arbitral tribunals are seated in different countries? In relation to the first question, the Swiss lex arbitri turns out to be quite incomplete. Regarding the second question, if the last competent arbitral tribunal has its seat in Switzerland, the Swiss lex arbitri lays claim to the entire arbitral proceeding with regard to mandatory procedural guarantees and the arbitrability of the case.
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RANJAN, Prabhash. "Police Powers, Indirect Expropriation in International Investment Law, and Article 31(3)(c) of the VCLT: A Critique of Philip Morris v. Uruguay." Asian Journal of International Law 9, no. 1 (September 11, 2018): 98–124. http://dx.doi.org/10.1017/s2044251318000139.
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AbstractGiven the global contestation against BITs and ISDS, the outcome of thePhilip Morrisv.Uruguaycase upholding Uruguay’s right to regulate for public health is important for the international investment law community. However, it is not just the outcome of a case but also the quality of legal reasoning that is significant in building the legitimacy of the ISDS system. This paper focuses on the reasoning adopted by the tribunal in deciding whether Uruguay’s regulatory measures resulted in the expropriation of Philip Morris’s investment. The paper critiques the tribunal’s use of Article 31(3)(c) of the Vienna Convention on the Law of Treaties to invoke the police powers rule in interpreting the expropriation provision of the Switzerland-Uruguay BIT. The tribunal’s reasoning was internally inconsistent and based on abuse of arbitral precedents. Clarity in legal reasoning by ISDS tribunals is imperative to boost the legitimacy of the ISDS system for all stakeholders.
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Andreeva, Yulia. "The Tribunal in Malaysian Historical Salvors v. Malaysia Adopts a Restrictive Interpretation of the Term “Investment”." Journal of International Arbitration 25, Issue 4 (August 1, 2008): 503–6. http://dx.doi.org/10.54648/joia2008037.
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The absence of a definition of “investment” in the ICSID Convention has led several arbitral tribunals to develop a narrow reading of this term. The most recent notable example of such conservative interpretation is a decision of the ICSID tribunal in Malaysian Historical Salvors (MHS) v. Malaysia. In that case, the tribunal decided that MHS’s contract with Malaysia to undertake complex salvage operations did not rise to the level of an investment because, among other things, the contract did not significantly contribute to Malaysia’s economic development. MHS’s four years of work also failed to reach the necessary level of risk and duration. This decision signifies a worrying trend in international jurisprudence to interpret the notion of investment restrictively.It remains to be seen whether an ad hoc annulment committee, which was constituted at the claimant’s request on October 30, 2007, will support the tribunal’s interpretation.