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Ilieva, P. "Judicialisation of international commercial arbitration". Thesis, City, University of London, 2016. http://openaccess.city.ac.uk/17891/.
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It has been increasingly argued that international commercial arbitration is stripping off its intrinsic features of an alternative dispute resolution method and turning into a mechanism that is almost indistinguishable from litigation. The development describing the metamorphosis of international commercial arbitration into a method that is very similar in process and substance to national litigation is referred to as the judicialisation of international commercial arbitration. The focus of this research is the process of judicialisation. The thesis questions whether it exists at all and, if yes, to what extent it has permeated both international arbitration proceedings and arbitral decision-making. While attempting to answer those questions other salient considerations are raised, such as: • Which characteristics of international commercial arbitration are fundamental for this method of dispute resolution and should remain intact; • What are the driving forces of the process of judicialisation; • Is the judicialised approach entirely consistent with the benefits of international commercial arbitration and to what extent? The ultimate objective of this thesis is to answer the question whether the judicialisation of international commercial arbitration is a positive development and thus be encouraged. Where negative implications are recognised, an attempt is made to identify the causes of the judicialisation process and offer solutions, if attainable.
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Mbithi, Peter Mutuka. "International commercial arbitration in Kenya: is arbitration a viable alternative in resolving commercial disputes in Kenya?" Master's thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/12893.
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Includes bibliographical references.The purpose of this paper was to determine whether arbitration is a viable alternative for resolving commercial disputes in Kenya. More so, because Kenya has adopted the UNCITRAL Model law, 1985 and revised the same in line with the model law, 2006. Furthermore, Kenya has set up the Nairobi Centre for International Arbitration, with an aim to promote and improve the conducting of arbitrations in the country. To answer the research question, the writer looked at the history of the arbitration law in Kenya, how the communities living in Kenya settled their disputes. In doing so, the writer looked at the dispute resolution mechanisms of the Kamba, the Kikuyu and the Kipsingis, all communities living in Kenya before the country was colonised by the British. We also looked at how the law of arbitration was introduced. Having established the basis of the Arbitration law in the country, the writer canvassed on the development of the law since independence in 1963 to the current situation. This included the support recently given to alternative dispute resolution mechanisms by the Constitution of Kenya as well as the establishment of the Nairobi Centre for International Arbitration. The writer also gave an overview of the role of the court in arbitration in Kenya, giving instances and examples at which the law envisages the involvement of the court in the arbitration process. Court supervised arbitration was also canvassed. The paper went on to look at the situation of commercial arbitration in two other developing countries in Africa, South Africa and Mauritius. It was found that Mauritius, which enacted its International Arbitration Act in 2008, has moved decisively to market itself as a viable, safe and prospective place of international commercial arbitration. It was also established that South Africa has not been able to review its Arbitration law, which was enacted in 1965. Last the writer looked at the opportunities, the benefits and the challenges that face arbitration in Kenya today. The research was limited by the fact that it was not possible to write about the practice of all communities in Kenya and therefore the three chosen were taken as samples to represent all the others.
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Vafakish, Sistani Masoud. "International commercial arbitration and state contracts". Thesis, University of Edinburgh, 1998. http://hdl.handle.net/1842/27017.
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Whether international commercial arbitration is appropriate as a method of state contracts dispute settlement is the main question of this thesis. In the course of this study, it is noted that, as a growing method of private commercial disputes settlement, international commercial arbitration, in principle has developed against a private law background. A trend in the practice of such arbitrations points to a desire for an expansion of the powers of arbitrators and the subsequent reduction of the role of national laws in arbitration and its eventual elimination through the so-called 'transnationalisation' of the process. Chapters I-VI focus on the question of how this process of transnationalisation is pursued and to what extent it has been accomplished. These chapters include a study of the nature of arbitration and state contracts, jurisdictional issues, control function in arbitration of state contracts, applicable substantive law, substantive remedies and the recognition and enforcement of awards. The final chapter, the question of why such a transnationalisation is sought is addressed. It attempts to identify the theoretical basis of transnational arbitration and any likely policy objectives followed by its proponents. From such a study, it would appear that, as distinct from national and international law, transnational law theory as the basis of international commercial arbitration follows a reductionist view of the setting of the law relating to transnational economic activities which considers only the commercial aspects. Given such foundations of the theory, it is argued that a bias towards the transnational business community ensues and is in turn reflected in the mechanisms of dispute settlement. In this sense, it would appear that, in relation to the settlement of state contract disputes, the mechanism, in principle, is biased against state parties whose concerns are not purely commercial, but have a public policy element. In dealing with the above, by way of comparison, references are made to the national and international law positions in respect of the matters under discussion.
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Huang, Ze Yu. "Pathological arbitration clauses in international commercial arbitration :law and practice in China". Thesis, University of Macau, 2016. http://umaclib3.umac.mo/record=b3570897.
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Sayed, Abdulhay. "Corruption in international trade and commercial arbitration /". The Hague [u.a.] : Kluwer Law Intern, 2004. http://www.gbv.de/dms/spk/sbb/recht/toc/331629887.pdf.
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Petsche, Markus A. "The growing autonomy of international commercial arbitration /". München [u.a.] : Sellier, Europ. Law Publ. [u.a.], 2005. http://www.gbv.de/dms/spk/sbb/recht/toc/497948885.pdf.
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Tolkušinas, Kasparas. "Defective Arbitration Clauses in International Commercial Contracts". Master's thesis, Lithuanian Academic Libraries Network (LABT), 2011. http://vddb.laba.lt/obj/LT-eLABa-0001:E.02~2011~D_20110124_131045-86915.
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Usually in a drafting process of a contract arbitration clause is left at the end of a contract. Sometimes it happens that parties really do not wish start discussions on how should arbitration clause look like or what details should it contain, because either parties think they would never come to a conflict or they are short in time and leave arbitration clause unconsidered. Absence of proper attention when drafting arbitration clauses is likely to give rise to defective arbitration clauses, which lead to much higher than expected time and money costs or even make arbitration impossible.
Master thesis analyses defective arbitration clause types and provision of a way to create correct arbitration clauses. In order to reach this goal gradual completion of tasks is necessary, which involves: a) identification of the main features of defective arbitration clause, b) identification of the main elements of well drafted arbitration clause, c) identification of the main types of defective arbitration clauses, d) provision of a classification of defective arbitration clauses, e) provision of as much as possible ways to avoid defective arbitration clauses and f) analysis doctrine and case law in this field and result encompassing conclusions. First part of master thesis briefly defines international commercial contract. This way the geographical scope of master thesis object is defined. Second part presents the roots of defective arbitration clause. Second part encompasses... [to full text]Dažniausiai rengiant tarptautines komercines sutartis arbitražinė išlyga eina sutarties pabaigoje. Kartais nutinka taip, kad šalys nerodo didelio noro kelti diskusijų dėl to kaip turėtų atrodyti arbitražinė išlyga arba kokius sudėtinius elementus ji turėtų turėti. Šalys gali manyti, kad ginčas mažai tikėtinas, todėl neverta gilintis į arbitražinę išlygą arba dėl laiko stokos įkeliama atsitiktinė arbitražinė išlyga. Pakankamo dėmesingumo trūkumas ruošiant arbitražinės išlygas dažniausiai leidžia kilti arbitražinėms išlygoms su spragomis, kurios esant ginčui priverčia šalis sugaišti daug daugiau laiko ir suvartoja daug daugiau finansinių resursų nei tikėtasi arba išvis paverčia arbitražą kaip ginčų sprendimo būdą šalių atveju neįmanomą. Magistriniame darbe nagrinėjamos arbitražinės išlygos su spragomis ir siekiama pasiūlyti būdą, kaip parengti taisyklingas arbitražines išlygas. Šiems tikslams pasiekti būtinas nuoseklus užduočių įvykdymas, apimantis: a) pagrindinių arbitražinės išlygos su spragomis bruožų nustatymą, b) pagrindinių taisyklingai parengtos arbitražinės išlygos elementų nustatymą, c) pagrindinių arbitražinės išlygos su spragomis tipų nustatymą, d) arbitražinių išlygų su spragomis klasifikacijos pateikimą, e) būdų išvengti arbitražinių išlygų su spragomis pateikimą ir f) doktrinos bei teismų praktikos analizę ir apibendrinančių išvadų pateikimą. Pirmoji magistrinio darbo dalis glaustai apibrėžia tarptautinę komercinės sutartį. Tokiu būdu geografinės magistrinio darbo... [toliau žr. visą tekstą]
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Muntañola, Alfonso Gómez-Acebo. "Party-appointed arbitrators in international commercial arbitration". Thesis, Queen Mary, University of London, 2013. http://qmro.qmul.ac.uk/xmlui/handle/123456789/26984.
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This thesis is a study of the system of party-appointed arbitrators in international commercial arbitration: an attempt to provide a comprehensive assessment of the system, in which the main questions about it are addressed and a set of answers to those questions is offered. The assessment takes a three-pronged approach: historical, theoretical and empirical. It includes an historical analysis of unilateral nominations, a theoretical assessment of how the system presently works and a comparative empirical study of challenges of arbitrators in ICC practice. The theoretical assessment of the system of unilateral appointments is a critical analysis of arbitration rules, laws, case law, other authors' reflections on the system and other written materials (such as, for instance, the works of the United Nations Commission on International Trade Law and of the International Bar Association). This assessment addresses many questions, including, amongst others: the limits to the right of the parties to make unilateral appointments, the risks to the principle of equality of the parties in the constitution of the arbitral tribunal in certain situations (e.g. multiparty arbitrations, consolidation, joinder), the specific problems of bias in tribunals with party-appointed members, the repeat appointments of an arbitrator by the same party or counsel, the question of whether a different standard of impartiality and independence in party-appointed arbitrators makes any sense, the presumption that party-appointed arbitrators can do things that presiding arbitrators cannot (e.g. the so-called 'special role' of party-appointed arbitrators and certain unilateral communications between appointors and appointees) and the question of whether it is worth keeping the system of unilateral appointments as the default method for the constitution of multiple-member tribunals. The study also includes some suggestions on how to improve the system, namely in order to increase the trust of each party in the arbitrator appointed by the other party and to allow an accurate match between what arbitration end-users may want from party-appointed arbitrators and what they ultimately get.
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Abasheikh, Omar Said Imam. "International commercial arbitration : a single supranational system". Thesis, Brunel University, 2018. http://bura.brunel.ac.uk/handle/2438/17102.
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This dissertation examines International Commercial Arbitration as it appears to have reached a turning point. Through the lens of institutional entrepreneurship opportunity and institutional change theory, the dissertation seeks to determine whether transforming arbitration from an unregulated process to a regulated system would enhance the practice. This question is vital at the present time as arbitration is blemished by increasing cost and time of arbitration proceedings, intervention by national courts in the arbitral process, diminishing party autonomy, and loss of privacy and confidentiality of the proceedings as shown by data from surveys conducted in the last decade or so, and also due to the potential threat posed by the growth of mediation and also litigation in specialist commercial courts. Commentary frequently highlights these issues, but many commentators seldom propose solutions because practitioners benefit from the institution's current chaotic arrangements where they could increase their fees and extend the proceedings for their financial gain. The dissertation shows that international commercial arbitration is a semi-institutionalised institution and would probably benefit from introduction of the regulative institutional pillar to make it fully institutionalised. An appeal procedure, a mechanism to make the process cost-effective, expeditious, and to reduce intervention by national courts in arbitration proceedings so that arbitrants can maintain privacy and confidentiality of their disputes appears desirable. It recommends establishment of a single supranational regulatory organisation called the 'International Centre for Arbitration of Commercial Disputes' (ICACD) to function as a bureaucratic structure in order to respond to the changing needs of the community and to enhance the institution's status and its functionality, such as to establish the 'International Arbitration Awards Review Council' (IAARC).
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Sinclair, Anthony Charles. "State contracts in investment treaty arbitration". Thesis, University of Cambridge, 2014. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.648775.
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Rodler, Irmgard Anna. "When are non-signatories bound by the arbitration agreement in international commercial arbitration?" Tesis, Universidad de Chile, 2012. http://www.repositorio.uchile.cl/handle/2250/112891.
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Tesis (master en derecho internacional (LL.M.) de la inversión, el comercio y arbitraje)This thesis concerns the issue of third non-signatory parties and analyses under what circumstances they should be bound by an arbitration agreement not signed by them. First it refers to the effects of signing an arbitration agreement between the parties, and then analyses the different theories that eventually could support an extension of the arbitration agreement to third parties. Also, it refers to the legislation of different countries and the treatment courts dispense on this subject, as well as to some international rules to discover which approaches are contained in those rules. It concludes by referring to the most important trends existing presently regarding the subject, used by arbitral tribunals to bring third non-signatory parties into arbitration proceedings
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Chang, Mann-Long. "Harmonisation of procedural law in international commercial arbitration". Thesis, University of Stirling, 2009. http://hdl.handle.net/1893/9931.
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The principle of party autonomy is widely accepted in the practice of international commercial arbitration. However, it still encounters certain limitations in its applications, especially for the fact that the demands of natural justice and the public good cannot be neglected by the parties. The various states in the international system have and operate peculiar systems of mandatory rules and public policies, which tend to impart significantly on the arbitral procedure, thereby creating a situation of discordance of outcomes of arbitration in different countries. For this reason, this writer intends to examine ways by which the various procedural laws can actually be harmonised. This thesis shall therefore focus on the discordances and confusion that often arise in the interacion of the various laws that may be applicable to the arbitral process in International commercial arbitration, as well as ways of achieving a harmonisation of these laws.
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Akanbi, Muhammed Mustapha. "Domestic commercial arbitration in Nigeria; problems and challenges". Thesis, King's College London (University of London), 2006. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.497256.
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Sadafi-Chaghooshi, Farshad. "Is international commercial arbitration an autonomous legal system?" Thesis, McGill University, 2014. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=121482.
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In recent decades, the nature of international commercial arbitration has been transformed from a method of dispute resolution to an autonomous legal system. Globalization and a shift of power from states to private actors have resulted in the emergence of an international arbitration community that eventually produced this kind of transition. This movement has generated a dynamic discussion over the legality and systematicity of the arbitral legal system. By applying various legal theories, scholars of different legal systems have analyzed the legality of the arbitral legal system. A few scholars have advocated the concept of this system based on a transnational legal positivism theory. In contrast, others, because of a lack of essential qualities of law and structural deficiencies in international arbitration, refuse to recognize it as an autonomous legal system. The main objective of the present work is to study the major legal theories about the legality and systematicity of international commercial arbitration, and then to take an overview of the adverse and advantageous consequences of applying the concept of the arbitral legal system.Au cours des dernières décennies, l'arbitrage commercial international a subi de grandes transformations : longtemps utilisé comme simple méthode de résolution des différends internationaux, il est en voie de devenir un système de droit autonome. Avec la globalisation des échanges et des activités humaines et la décentralisation du pouvoir des États vers des acteurs privés, une nouvelle catégorie d'arbitres internationaux a fait son apparition, de nouveaux arbitres qui deviennent à leur tour des agents de changement. La pluralité de leurs opinions a poussé ces nouveaux acteurs à se questionner sur la viabilité à long terme de la mise en place d'un nouvel ordre juridique arbitral. Diverses théories juridiques mises de l'avant par des experts issus de différents domaines du droit ont permis d'en étudier la légalité et la systématicité. Ce nouvel ordre juridique a ses défenseurs et ses détracteurs. Certains le défendent en invoquant la théorie positiviste du droit basée sur les règles de droit transnationales. D'autres refusent de le considérer comme un système autonome parce certaines règles de droit essentielles n'y sont pas définies et qu'il existe des lacunes structurelles flagrantes en arbitrage international. Ce sont là quelques-unes des grandes questions qui seront débattues dans le présent ouvrage. L'auteur y fera d'abord l'analyse des principaux courants théoriques traitant de la légitimité et de la systématicité de l'arbitrage commercial international et de la mise en place d'un régime juridique dans ce domaine, pour se concentrer ensuite sur les avantages et les désavantages que sa reconnaissance en tant que système de droit autonome pourrait représenter.
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Al, Jazy Omar Mashhoor Haditheh. "Some aspects of jurisdiction in international commercial arbitration". Thesis, University of Kent, 2000. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.322825.
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Abdullah, Muhammad Tahir. "Role of UAE courts in international commercial arbitration". Thesis, University of Bedfordshire, 2013. http://hdl.handle.net/10547/305727.
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Concept of arbitration has been prevalent, historically, in the Middle East since the early days of Islam. The arbitral process has been problematic in the UAE however, it has not been until recently that the UAE has recognized the importance of arbitration as a powerful dispute resolution alternative and revised its legislation to accommodate the proceedings of domestic and international arbitration. In the past, foreign investors have been reluctant to select the UAE seat for their arbitration proceedings. There has been a perception that, as a general rule, the practice of international commercial arbitration in the Middle East is still in its infancy. The UAE is now demonstrating to the international community that it has the necessary infrastructure and laws in place to successfully count itself as one of the key arbitration players, alongside London, Paris and Hong Kong. This has been the result of the UAE updating their laws, reforming dispute resolution practice and procedures and through the establishment of key regional arbitration centres. The UAE's accession to the New York Convention was also seen as a significant step in demonstrating the UAE's commitment to foreign investors and the international community. Under Federal Decree No. 43 of 2006, the UAE managed to accede to the New York Convention. The UAE's accession is considered as a mile stone towards provision for a more straightforward arbitral process and enforcement of foreign arbitral awards in other Convention states. As a recent development, the UAE has evidenced the joint venture between the Dubai International Financial Centre ('the DIFC') and the London Court of International Arbitration ('the LCIA'), in February 2009, to create the DIFC-LCIA Arbitration Centre ('the DIFC~LCIA'). The DIFC-LCIA operates alongside the longer-established Dubai International Arbitration Centre ('the DlAC'). Both offer their own procedural rules and regulations for the amicable settlement of disputes through arbitration. The Courts role is vital in an arbitral proceeding in any jurisdiction. Although arbitration is believed as a court-free, independent forum for dispute resolution; the court plays fundamental role to ensure that the arbitral proceeding is taking place in a moderate and independent decorum. The UAE Court's role towards the International commercial arbitration has been very problematic and the courts historically used to intervene in the arbitral proceeding over tiny issues. The new UAE arbitration laws has changed the situation and curtailed the courts powers to interfere the arbitral proceeding. At present, the arbitration in the UAE is more independent and straightforward. The proposed UAE arbitration law has much more similarities with the Model Law UNCITRAL and meets the International standards. A lot of work still has to be done in order to make the arbitration more independent, straightforward and friendly in the UAB. The Court's role is vital and is required to be more supportive then it is at present in the arbitral process.
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Zhang, Chen Guang. "Judicial interventions in international commercial arbitration :an assessment of legislation and practice of China". Thesis, University of Macau, 2018. http://umaclib3.umac.mo/record=b3952244.
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Dalentoft, Tomas y Magnus Toftgård. "International Arbitration : Arbitration Agreements and the writing requirement". Thesis, Jönköping University, JIBS, Commercial Law, 2009. http://urn.kb.se/resolve?urn=urn:nbn:se:hj:diva-7471.
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Abstract
As international trade is constantly increasing, the number of disputes between international parties is greater than ever. In view of the fact that it is difficult to get court judgments recognized and enforced, arbitration has gained a great foothold in international commercial disputes. The leading international legal framework for recognition and enforcement of arbitral awards is the New York Convention of 1958 with 142 Member States as of today. It simplifies recognition and enforcement of arbitral awards in foreign countries. Nevertheless, certain criterions are required to be fulfilled and a much-debated criterion is the writing requirement for arbitration agreements.
The writing requirement is found in Article II(2) of the New York Convention and it stipulates that an arbitration clause or an arbitration agreement must be signed by the parties or contained in an exchange of letters or telegrams to constitute a valid arbitration agreement, which is the foundation of a recognizable and enforceable arbitral award. The requirement in itself is clear, but the development of electronic communication and the fact that national courts interpret the writing requirement differently, leads to dissimilar requirements in various countries. Moreover, numerous new ways of how to conclude contracts have been established during the 50 years that has passed since the adoption of the New York Convention and the ever increasing number of disputes has questioned the function of the writing requirement. The UNCITRAL has, by adopting a model law, tried to accomplish a uniform interpretation and establish what it takes to fulfill the writing requirement. The starting point for the work of the UNCITRAL was to modify national arbitration legislation and thus reach the objective of harmonizing the writing requirement.
The thesis undertakes an international outlook in three countries, Australia, Italy and Sweden. These countries are all Member States of the New York Convention but there are great differences in their legislation. Sweden imposes no writing requirement and Italy has applied a very restrictive interpretation. Australia has incorporated the UNCITRAL Model Law. The international outlook illustrates how the interpretation depends on national arbitration legislation and attitude towards the writing requirement.
An analysis of the current general legal context shows a weakening threshold for fulfillment of the writing requirement. It is also evident that the writing requirement is not in line with how international trade is practiced today. The writing requirement frequently constitutes a formalistic problem regarding conclusion of contracts, as it comprise a requirement with-out function. In addition to this, the attempts of the UN have failed to eliminate uncer-tainty and the divergence in interpretation. To reach a uniform interpretation, an immense overhaul of the New York Convention is needed, alternatively that additional States adhere to the UNCITRAL Model Law and thus eliminate the national differences of today.
Sammanfattning
En ständigt ökande internationell handel leder till en ökning i antalet tvister mellan parter från olika länder. Då nationella domslut är svåra att få erkända och verkställda i en främmande stat har skiljedomsförfaranden ökat i antal. Regelverket kring att få en skiljedom erkänd och verkställd i en främmande stat utgörs främst av New Yorkkonventionen från 1958 med 142 fördragsslutande stater till dags dato. New Yorkkonventionen möjliggör att en internationell skiljedom lättare kan erkännas och verkställas i en främmande stat. Dock måste vissa kriterier vara uppfyllda och ett av de mest omdebatterade och domstolsprövade kriterierna är det skriftliga formkravet för skiljeavtal.
Skriftlighetskravet regleras i Artikel II(2), New Yorkkonventionen och påvisar att skiljeavtalet måste vara undertecknat av parterna eller inkluderat i brev- eller telegramväxling för att vara giltigt. Ett giltigt skiljeavtal formar grunden för en verkställbar skiljedom. Kravet i sig är relativt tydligt men med teknologins frammarsch och det faktum att nationella domstolar tolkar skriftlighetskravet olika har kraven för att uppnå skriftlighetskravet skiftat från land till land. Framförallt har olika sätt att sluta avtal tillkommit under de 50 år som New Yorkkonventionen har existerat och även det ökande antalet internationella skiljedomsförfaranden har ifrågasatt grunden för skriftlighetskravet. UNCITRAL har genom en modellag om kommersiella skiljeförfaranden försökt skapa enhetlighet om hur skriftlighetskravet skall tolkas och vad som krävs för att uppnå kravet. Utgångspunkten för UNCITRAL’s arbete har varit att förändra nationell lagstiftning och därmed uppnå målet om harmonisering av skriftlighetskravet.
Uppsatsen gör en internationell utblick i tre länder, Australien, Italien och Sverige. De tre länderna är fördragsslutande stater till New Yorkkonventionen men deras nationella lagstiftning skiftar markant. Sverige påvisar inte något skriftlighetskrav för skiljeavtal och Italien har tolkat skriftlighetskravet restriktivt. Australien har fullt ut inkorporerat den modellag som UNCITRAL har utarbetat gällande kommersiella skiljeförfaranden. Utblicken visar även i flera rättsfall hur olika tolkningen av skriftlighetskravet blir beroende på den nationella lagstiftningen och inställningen till skriftlighetskravet.
En analys av rättsläget påvisar att tröskeln för att uppnå skriftlighetskravet tenderar att luckras upp. Det framkommer även att skriftlighetskravet inte är i fas med hur internationell handel praktiseras idag. Skriftlighetskravet är ofta ett formalistiskt problem vad gäller avtalsslut och konstituerar ett krav utan funktion. Därtill har de försök som gjorts från överstatligt håll misslyckats med att undanröja osäkerheten och skiftningar i tolkningen. För att uppnå enhetlighet krävs en genomarbetning av New Yorkkonventionen, alternativt att fler stater anammar UNCITRAL’s modellag och därmed undanröjer de nationella olikheter som existerar idag.
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Allahhi, Nahal. "The optimization of court involvement in international commercial arbitration". Thesis, University of Manchester, 2016. https://www.research.manchester.ac.uk/portal/en/theses/the-optimization-of-court-involvement-in-international-commercial-arbitration(39e048d6-7a83-465b-b5b2-5cf8e4b6f6e6).html.
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Despite all the advantages of international arbitration, it has never been considered as an entirely independent and complete dispute settlement system and as such has been traditionally assisted by national courts. Nevertheless, the optimum model for courts’ involvements in international arbitration is not clear. More importantly, given the latest development in the theory and practice of international arbitration, the necessity and nature of such involvement is under question. Accordingly, this thesis aims to determine the optimum scenario of court involvement in international arbitration in order to enhance its efficiency by providing a fairly harmonised (transnational) approach regarding court involvement in the various stages of international arbitration. Taking efficiency consideration as the main guidance and indicator in modern legal scholarship, the thesis will develop normative discourse regarding harmonization of court involvement in international arbitration based on the comparative and analytical study of two major jurisdictions, the United Kingdom and the United States, and will suggest different solutions which can minimize the need for court’s involvements through their substitution by other mechanisms such as party autonomy as well as the expansion of the competence and the authorities of arbitral tribunals. To achieve the desired result, this thesis will analyse and respond to the following fundamental questions: (a) Why, where and when can national courts become involved in arbitration cases? (b) Is there any potential conflict between national courts’ competence and the historical facts regarding independence of international arbitration? (c) What are the potential solutions to harmonize court involvement in international arbitration at each stage? (d) To what extent can it be argued that national courts should waive part of their authority in favour of international arbitration in order to enhance the efficiency of international arbitration? (e) What are the potential avenues that need to be explored in order to harmonize court involvement in international arbitration?After examining the above mentioned questions, the thesis concludes that courts’ involvement in international arbitration may occur in 4 different stages, namely, before the establishment of arbitral tribunal, at the commencement of arbitration process, during the arbitration and finally at the time of recognition and enforcement of foreign arbitral award. It also suggests that prior to establishment of arbitral tribunal, recognition of a concurrent jurisdiction for the court of the place of arbitration can significantly remove the potential obstacles in front of the conclusion of the tribunal. Moreover, and given the extended role of party autonomy in selecting substantive and procedural law, arbitrating parties can minimizes the possibility of recourse to national courts at the commencement of the tribunal and during the process by submitting their claims arbitration institutions which can offer most of the services offered by national courts and as such will remove the need for national courts intervention. Finally, the thesis proposes that although recognition and enforcement of arbitral award may inevitably require the involvement of local courts, development of a transnational notion of public policy and arbtirability based on efficiency will lead to a sort of universal approach in the enforcement of international awards regardless of the place of business or the nationality of the party-debtor in arbitration.
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Alshubaiki, Torki Abdulah. "A participation towards the internationalisation of international commercial arbitration". Thesis, London School of Economics and Political Science (University of London), 2003. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.402147.
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Vafaeian, Leila. "Public policy v. party autonomy in international commercial arbitration". Thesis, University of Newcastle upon Tyne, 2016. http://hdl.handle.net/10443/3436.
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The purpose of this thesis is to examine and analyse the scope and extent of judicial involvement in international commercial arbitration, with specific emphasis on its consequences for Iran. As an alternative form of dispute resolution under the jurisdiction of national courts, arbitration involves the establishment of a private jurisdiction over disputes, and is implemented through the creation of commercial contracts that derive their authority from the parties’ free will and autonomy. However, in reality, arbitration is not a separate and free-standing system of justice. It is a system established and regulated pursuant to law, which is never independent from the supervisory authority and control of national courts over the arbitration system. International commercial arbitration involves finding a balance between individual freedom of contract and the sovereign right of states as exercised through their national courts to exert some control and influence over the international arbitration process. Arbitration in practice is essentially a mixture of contract and litigation. The voluntary consent of the parties is a reflection of its contractual bedrock, while its binding character draws elements of the judiciary into it. A richer grasp of the application of the principles of party autonomy and states’ jurisdictional rights in arbitration is therefore vital to a full comprehension of the operation of international commercial arbitration. Thus, this thesis examines and critically analyses the freedom of the parties in arbitration, the limits of the parties’ freedom or autonomy, the role of national laws in setting those limits, and the role of national courts in regulating those limits in both the place of seat and enforcement place. It is frequently emphasized that modern international commercial arbitration needs more freedom from the supervision of the state courts. While many states’ legislations recognise the principle of party autonomy, at the same time, in practice, they also seek to establish a framework for judicial intervention in arbitral proceedings in certain instances, such as public policy. National legal systems have reserved space for the domestic system to restrain the potential excesses of free will, so that party autonomy cannot go beyond it. This thesis advances the concept of ‘nationality’ as an essential aspect of the way in which the modern international arbitral framework seeks to strike a balance between party autonomy and public policy. It concludes that by fixing the nationality, parties are able to identify the primary and secondary jurisdictional authority, mandatory rules and the procedural law applicable to the whole arbitration process. The primary authority exercises its powers to intervene in the arbitration process to provide the necessary assistance and support to arbitration. iii This thesis concludes that the Iranian Civil Procedure Code, legal doctrines, and arbitral practices have generally recognised the party autonomy principle and enforce it in individual contractual relationships. According to Iranian law, the intention and consent of citizens is important in entering into contracts and, without the consent of the parties, there is no valid contract. Iranian legislators also provide the grounds on which party autonomy and parties’ free will are limited.
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Awojobi, Adeola Falilat. "Confidentiality and third party participation in international investor-state arbitration". Master's thesis, University of Cape Town, 2015. http://hdl.handle.net/11427/15187.
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The contractual nature of arbitration as a form of alternative dispute resolution in the context of cross-border/international disputes traditionally emphasises confidentiality as one of the fundamental characteristics of international arbitration. Confidentiality is often assumed to be a common feature and advantage of international commercial arbitration, and the privacy of arbitral proceedings has facilitated and encouraged recourse to arbitration. However, the issue of confidentiality has a different dimension and is limited in the context of international investment and trade disputes. The participation of States, State entities, sub-divisions and agencies in international disputes shifts the emphasis from privacy and confidentiality to transparency and accountability. This study analyses the role of confidentiality in investor-State arbitration, noting that confidentiality is not always preserved in many respects and stages throughout the arbitration proceedings. The paper considers the issues that challenge the legal effectiveness of confidentiality in international investor-State arbitration and the development towards transparency. In particular, the paper examines the participation of non-disputing/third parties in investor-State arbitration, the different approaches of major arbitral institutions towards the issue of confidentiality, and the arguments for and against confidentiality in relation to transparency. It concludes by making recommendations in the context of the development of investor-State arbitration.
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Tarawneh, Musleh Ahmad Musa. "Recognition and enforcement of foreign arbitration agreements under the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards of 1958". Thesis, Available from the University of Aberdeen Library and Historic Collections Digital Resources, 1998. http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?application=DIGITOOL-3&owner=resourcediscovery&custom_att_2=simple_viewer&pid=59754.
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Shahrullah, Rina Shahriyani. "The implementation of international arbitral awards in commercial relationships : a comparative legal study between Indonesia and Australia /". [St. Lucia, Qld.], 2005. http://www.library.uq.edu.au/pdfserve.php?image=thesisabs/absthe18738.pdf.
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Baamir, Abdulrahman. "Saudi law and judicial practice in commercial and banking arbitration". Thesis, Brunel University, 2009. http://bura.brunel.ac.uk/handle/2438/6599.
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This thesis examines various issues of arbitration law and practice in relation to the Islamic Shari’a law and the law of Saudi Arabia in general, and for arbitration in conventional banking disputes in particular. The thesis found that the Shari’a regulates arbitration tightly compared to other contemporary developments as no fundamental differences were found to exist between the classical Shari’a arbitration rules and the Saudi arbitration regulations, which represent the codification of the Hanbali law of arbitration. Unlike other arbitration laws, almost all kinds of disputes can be settled by arbitration in Saudi Arabia, and these include family and some criminal disputes such as murder and personal injuries. Moreover, this thesis demonstrates the difference between Islamic law and Saudi law. The latter is more comprehensive as it includes Islamic law and the borrowed Codes and Acts of the laws of other nations. The legal status of banking interest under the Saudi law is not clearly defined and it is not clear whether riba contradicts with the public policy of Saudi Arabia or not. This uncertainty has an impact on arbitration related to banking disputes and has led me to conclude that arbitration is not the best method for settling disputes involving domestic conventional banking business. Although resorting to the Committee for the Settlement of Banking Disputes of SAMA might provide a better solution, the decisions of the Committee are not “strong” enough to be fully enforced and the payment of interest continues to be an avoidable obligation in Saudi Arabia; therefore, the thesis examined the alternative remedies for both domestic and international banking arbitration. The thesis also found that if the enforcement of an international arbitration award is sought in Saudi Arabia, the award will be subject to the mandatory application of Shari’a law, which in addition to the imposition of interest, prohibits also certain kinds of commercial contracts.
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Al-Sellili, Yousuf M. "The relationship between the Kuwaiti national court and commercial arbitration". Thesis, University of Glasgow, 2003. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.396510.
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Fergus, Emma. "From Sidumo to Dunsmuir the test for review of CCMA arbitration awards". Doctoral thesis, University of Cape Town, 2013. http://hdl.handle.net/11427/4607.
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Includes abstract.Includes bibliographical references.
This thesis seeks to identify the test for judicial review of arbitration awards issued by the Commission for Conciliation, Mediation and Arbitration ('CCMA'). Currently, that test is set out in section 145 of the Labour Relations Act 66 of 1995 ('LRA'), read with the Constitutional Court's decision in Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] 12 BLLR 1097 (CC). In terms of Sidumo, section 145 of the LRA has been suffused by the standard of reasonableness, consistently with the right to just administrative action found in section 33 of the Constitution of the Republic of South Africa, 1996 ('the Constitution'). In search of a clear formulation of the test, an extensive examination of South African case law on the subject is undertaken. Thereafter, relevant principles of judicial review in South Africa in the administrative sphere generally are considered. Finally, an assessment of Canadian case law and commentary in this field is conducted. The conclusion to this thesis proposes a revised test for review of CCMA awards. The principal research findings begin by recognising the significance of efficiency, accessibility, flexibility and informality to ensuring fair and efficacious labour dispute resolution. The implication of this is that the test for review of CCMA awards should not be too exacting. Still, section 33 of the Constitution cannot be ignored and a broader ambit of review may therefore be necessary in certain instances. In fact, to maintain legal certainty, intrusive review may sometimes be crucial. These factors must be balanced when formulating a reliable and practical approach to review of CCMA awards. A key finding of this thesis is that – ostensibly due to the complexity of doing so – the Labour Courts have struggled to apply the current test for review consistently, fairly or predictably.
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Mlimuka, Shirley Aggrey. "A perspective of the role of Tanzanian national courts in commercial arbitration". Master's thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/12903.
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Aluko, Adebowale. "Towards a more effective legal framework for investor-state arbitration in Nigeria". Master's thesis, Faculty of Law, 2021. http://hdl.handle.net/11427/33622.
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There has been a backlash against the Investor State Dispute Settlement (ISDS) system in recent times. Amongst other complaints, critics have argued that the ISDS whittles down the regulatory powers of states in favour of private adjudicators. These criticisms are premised on the fact that unlike commercial arbitration, investment arbitration awards may have far reaching effects on states. In response to these concerns, the United Nations Commission on International Trade Law (UNCITRAL) Working Group III and other similar bodies have been tasked to carry out reforms to address some of these issues. In spite of ongoing reforms, criticisms have continued with some countries abandoning the investor-state arbitration mechanism altogether. In Nigeria, the state of crisis in the judiciary has necessitated the need for a viable alternative to litigation. The ISDS framework therefore remains the preferrable option for the resolution of investment disputes. There have been recent attempts to amend the Arbitration and Conciliation Act 11 of 1988. Also, the Nigerian Investment Promotion Commission recently announced plans to reform the country's investment law framework. It is in the light of these developments that this research has been undertaken to examine the flaws in Nigeria's investment arbitration framework and reforms that may be introduced to address them. In making a case for the retention of the ISDS framework in Nigeria, this study critiques Nigeria's investment arbitration framework and explores a number of recommendations towards addressing current challenges. It is argued that the proposed solutions will improve the effectiveness of Nigeria's investment arbitration framework especially with respect to the legal framework for the consent of the Nigerian government to ICSID arbitration and in the area of court assisted measures and post-arbitral award litigation.
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Sianondo, Clavel. "Arbitration practice in Zambia : the process and its legal impediments". Master's thesis, University of Cape Town, 2016. http://hdl.handle.net/11427/20794.
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Arbitration as a process of dispute resolution has been pivotal in addressing a lot of business needs to have the dispute resolved within a short period and with less inconveniences to their business. The principle of confidentiality gives impetus to the process. The skill of the arbitrators and the general party autonomy has made the process and awards to be fully complied. Despite the monumental progress made in the field of arbitration as a means of dispute settlement, the process has been beset by reversal which is inherent in the Arbitration Act itself thereby whittling down the advantages ascribed to the process. To this end, the study therefore highlights the historical development of arbitration in Zambia. The process of arbitration and its role in enhancing access to justice will also be examined. The advantages and how the same have been weakened by the Arbitration Act, other legislations and indeed the interpretive impositions by the court will be investigated. Among other provisions which fly in the teeth of the entire process is its usually unqualified attachment to the court system without cognisance of the aspiration of the entire process of arbitration. To redress these weaknesses in the Act and the rules which guide the arbitration process, this study will spur reforms so as to bring the law into conformity with the expectations of the end users.
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Shalaan, Wael S. E. "Interim measures in international commercial arbitration : a comparative study of the Egyptian, English and Scottish law". Thesis, University of Stirling, 2013. http://hdl.handle.net/1893/17593.
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Interim Measures are viewed as an essential means to protect parties‘ rights in international commercial arbitration disputes. Most Arbitration Laws and Rules have recognised the arbitral tribunal‘s power to grant such measures. The success of this system relies on the court‘s assistance of the tribunal during the process. This relationship between the tribunal and the court is something vague under Egyptian Law, since there are no clear rules addressing the matter. Hence, this research examines the theories that explain the tribunal‘s authority and the relationship with the authority of the court. This study uses a comparative analytical approach in terms of analyzing relevant legal texts to determine the optimal legal approach to the issue. The purpose of the study is to address deficiencies in the Egyptian law – the Code of Civil Procedure and Egyptian Arbitration Law – and compare it with English, Scottish Arbitration Acts and international arbitration systems, laws, and practices. The findings of this research offer several recommendations that could help achieve a successful and smooth arbitration process. This study identifies and explains types of interim measures and explores the international practice of every type. It gives some important recommendations for future development and improvement of the Egyptian law. It also makes general recommendations that would help improve the efficiency of the English and Scottish laws.
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Pauker, Saar. "Characterization problems in investment treaty arbitration". Thesis, University of Cambridge, 2011. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.609210.
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Kamanga, Patricia Nchimunya Shansonga. "An analysis of the powers of arbitrators in international commercial arbitration". Thesis, University of Edinburgh, 2008. http://hdl.handle.net/1842/29186.
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This study analyzes the powers of an arbitral tribunal conducting arbitration proceedings under the UNCITRAL Model Law and under the English Arbitration Act of 1996. The study rests on an accumulation of case law, current and secondary literature. The thesis shows that the extent of an arbitral tribunal’s powers is determined by the agreement of the parties subject to the applicable laws and rules of arbitration. The first chapter lays down the framework upon which a tribunal’s powers are established and the basic standard of behaviour expected from a tribunal performing a juridical duty. The second chapter analyzes the power of a tribunal to conduct arbitration proceedings. It recognizes the power of a tribunal to deal with the dispute between the parties as ultimate and its power to deal with procedural issues as limited and subject to the agreement of the parties. Chapter three looks at the power of a tribunal to make a final and binding award that is enforceable at law. The chapter recognizes the need for the tribunal to comply with and fulfil the requirements of the lex arbitri and the doctrine of res judicata. Chapter four examines the nature of objective arbitrability and the power of a tribunal to define its own jurisdiction. The chapter shows the benchmarks used to determine the question of objective arbitrability and how these act as a controlling feature over arbitrable issues as well as over the extent of an arbitral tribunal’s jurisdiction. Chapter five makes an analysis of the extent to which a court may be permitted to intervene in the arbitration process before the appointment of a tribunal and during the tribunal’s conduct of the arbitration proceedings. It becomes evident from the study that the court plays a role of sending arbitrable matters to arbitration and rescuing the arbitration when need be. The final chapter discusses the extent to which a court may intervene in the work of an arbitral tribunal after the final award. The thesis shows that the court’s role is permitted in a systematic way that ensures that the arbitral tribunal’s exercise of its power is not disrupted.
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McInnis, J. Arthur. "A commentary on the International Commercial Arbitration Act of British Columbia". Thesis, McGill University, 1987. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=63987.
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Asouzu, Amazu Anthony. "African states and international commercial arbitration : practice, participation and institutional developments". Thesis, London School of Economics and Political Science (University of London), 1996. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.388810.
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Yoshida, Ikko. "Comparative study of international commercial arbitration in England, Japan and Russia". Thesis, University of Edinburgh, 2000. http://hdl.handle.net/1842/15757.
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This thesis examines the law on international commercial arbitration in England, Japan and Russia with a view to identify those areas for which harmonisation is of the greatest practical importance. This study is a timely one, since the Arbitration Act 1996 came into effect on 1st January 1997 in England. In Japan, the Committee of Arbitration formed by Japanese experts on arbitration prepared the Draft Text of the Law of Arbitration in 1989, and preparation for amendment based on the UNCITRAL Model Law is under way. In Russia, the Law on International Commercial Arbitration was established based on the UNCITRAL Model Law on 7th July 1993. A comparative study is made of the rules of international private law relating to arbitration, especially issues on international jurisdiction. Despite of recent development of unification of law on arbitration such as the 1958 New York Convention and the UNCITRAL Model Law, there are few rules in this area. This study goes some way towards filling this gap in the legal framework. The classification of an arbitration agreement and its influences upon international private law and law on arbitration are also considered. The issue of classification has been argued by many commentators usually to attempt to clarify the general characteristics of arbitration. However, it is the classification of an arbitration agreement that has practical significance. The classification of an arbitration agreement affects, directly or indirectly, not only the international private law but also law on arbitration. Its effects extend to the law applicable to an arbitration agreement, the law applicable to the capacity of a person to enter into an arbitration agreement, the principle of separability of an arbitration agreement, assignment of an arbitration agreement, the principle of Kompetentz-Kompetentz, and the stay of court proceedings on the basis of the existence of an arbitration agreement. Finally, this comparative study is used as a basis to put forward models for harmonisation in the interpretation of law on arbitration.
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Ojiegbe, Chukwudi Paschal. "The interface between international commercial arbitration and the Brussels I Regime". Thesis, University of Aberdeen, 2016. http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?pid=231752.
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The treatment of international commercial arbitration in the EU judicial area has been intensely debated, particularly in relation to the scope of the arbitration exclusion contained in the 'Brussels I Regime,' the three EU Brussels instruments on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The original Brussels Convention was replaced by the Brussels I Regulation, which was in turn replaced by the Brussels I Recast, the current EU legislative framework on jurisdiction. Arbitration was excluded from the scope of the Brussels Convention by virtue of Art 1(4), and the same arbitration exclusion is retained in Art 1(2)(d) of the Brussels I Regulation and the Brussels I Recast. Yet, the interaction of commercial arbitration with the Brussels I Regime in the EU remains controversial despite the arbitration exclusion. The controversy is largely based on the unregulated interface between commercial arbitration and the Brussels I Regime, which is created by the fact that neither the Brussels I Regime nor the New York Convention provide mechanisms to properly address the situation in which matters that are ordinarily addressed in international commercial arbitration may also fall within the material scope of the Brussels I Regime. It follows that international commercial arbitration based on the New York Convention and international commercial litigation based on the Brussels I Regime may interact in the process of the arbitral tribunals and courts of Member States exercising jurisdiction in civil and commercial matters, as both instruments in any such interaction each require respect and obedience, but do not otherwise regulate their potential conflict, this can lead to an undesirable degree of uncertainty between the two regimes. The Brussels I Recast contains a new Recital 12 that provides greater clarity in relation to the scope of the arbitration exclusion in Art 1(2)(d). However, the Recital does not entirely resolve all the questions concerning the arbitration/litigation interface. Therefore, in view of the remaining problems which the Brussels I Recast did not specifically address, it is suggested in this thesis that: (1) the wording of the Treaties relating to the exclusive external competence of the EU should be made clearer; (2) specific rules that will allow the Member State court with jurisdiction under the Brussels I Regime the possibility of staying the litigation at the request of the arbitral tribunal should be included in the future revision of the Brussels I Regime. The proposed solution would not undermine the operation of the New York Convention; neither would it create exclusive external competence of the EU in aspects of international commercial arbitration, which is the main political concern of some Member States with regard to partially including arbitration within the scope of the Brussels I Regime.
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Marti, Ulrich. "Interim measures in international commercial arbitration with seat in Zurich (Switzerland)". Master's thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/4664.
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Parties to international commercial transactions choose to refer potential disputes to arbitration instead of litigation for different reasons. In most of the cases an important factor for a decision in favour of arbitration is that they want to have a potential dispute settled quickly. Even if the dispute resolution through arbitration is often speedier than court proceedings, it still takes a fair amount of time until a final award is rendered. Thus, it might become necessary to obtain interim measures to regulate the terms of an ongoing relationship for the duration of the arbitral proceedings, to stabilize matters on a provisional basis or to avoid frustration of the final award. If the need for interim measure arises, the concerned party will be confronted with a bundle of complex legal and tactical questions. The second chapter deals with the question which judicial authority has jurisdiction to order interim measures in international arbitral proceedings conducted in Switzerland, respectively with the legislative and contractual framework that must be considered in order to determine the competent authority. As will be explained, arbitral tribunals and state courts may have concurrent jurisdiction to order interim measures and thus, the parties will have to decide which authority to apply to. To determine which possibility will be more advantageous in the concrete circumstances they have to compare the two options. Thus, the third chapter is concerned with interim measures available to arbitral tribunals, whereas the fourth chapter deals with those available to state courts. In these two chapters the focus is particularly on the variety of interim measures, some procedural aspects and on questions with regard to enforcement. In chapter five some selected questions and problems caused by the concurrent jurisdiction of the arbitral tribunal and the state court will be addressed. I will conclude with the question whether or not one can determine a general rule that it is more advantageous for parties to international arbitration to address either the state court or the arbitral tribunal with a request for interim measure.
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Schinazi, Mikaël. "The three ages of international commercial arbitration : between renewal and anxiety". Thesis, Paris, Institut d'études politiques, 2019. http://www.theses.fr/2019IEPP0010.
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Cette thèse porte sur l’histoire de l’arbitrage commercial international, mode de règlement des différends par lequel les parties soustraient l’examen de leur litige aux juridictions étatiques et en confient la solution à une ou plusieurs personnes privées. Cette histoire peut être divisée en trois grandes périodes. Pendant « l’âge des aspirations » (des années 1800 à 1920 environ), l’arbitrage fut utilisé dans de nombreux contextes, tant sur le plan national (arbitrage corporatif) qu’international (arbitrage interétatique), ce qui a conféré certains traits caractéristiques à la pratique moderne de l’arbitrage commercial international. Pendant l’« âge de l'institutionnalisation » (des années 1920 à 1950 environ), des institutions clés, telles que la Chambre de commerce internationale et sa Cour d’arbitrage, furent créées, et on assista également à la mise en place de systèmes d’arbitrage institutionnels cohérents et efficaces. Enfin, l’« âge de l’autonomie » (depuis les années 1950) fut marqué par une spécialisation accrue et par les tentatives d’auto-instituer un corps de droit séparé et de justifier les fondements théoriques du système d’arbitrage dans son ensemble. Cette recherche démontre que l’histoire de l’arbitrage commercial international oscille entre des phases de « renouveau » et des phases d’« anxiété ». Pendant les périodes de renouveau, de nouveaux instruments, dispositifs et institutions furent conçus pour étendre la portée de l’arbitrage commercial international. De telles mesures furent contrebalancées pendant les périodes d’anxiété ou de remise en question, pendant lesquelles on chercha à limiter la place de l’arbitrage (afin, par exemple, de ne pas empiéter sur la souveraineté des États). Cette tension ou mouvement de balancier entre renouveau et anxiété est un trait caractéristique de l’histoire de l’arbitrage commercial international et permet d’expliquer les forces structurantes qui sous-tendent son évolutionThis thesis is an exploration of the history of international commercial arbitration—the mechanism by which the mutual rights and liabilities of the parties are determined with binding effect by a third person, the arbitrator, instead of by a court of law. It seeks to divide the history of international commercial arbitration into three broad waves or periods. In the Age of Aspirations (ca.1800–1920), arbitration was used in a range of contexts, both domestic (in local trade associations) and international (between states), as a result of which some of the defining features of modern international commercial arbitration practice were established. The Age of Institutionalization (1920s–1950s) witnessed the creation of key institutions, such as the International Chamber of Commerce and its Court of Arbitration, and the establishment of coherent and effective institutional arbitration systems. The Age of Autonomy (1950s–present) was marked by increased specialization and the attempt to create a separate body of law and justify the theoretical foundations of the arbitration system as a whole. The thesis argues that this history oscillates between moments of renewal and moments of anxiety. During periods of renewal, new instruments, devices, and institutions were created to carry international commercial arbitration forward. These initiatives were then counterbalanced during periods of anxiety, in which it seemed that international commercial arbitration should not go too far (lest it encroach on state sovereignty, for example). This tension or pendulum-like movement—from renewal to anxiety and from anxiety to renewal—is a key feature of the history of international commercial arbitration and helps explain the course of its development
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Duquenne, Céline. "L'autonomie de la clause compromissoire en droit du commerce international". Thesis, McGill University, 2000. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=31157.
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The arbitration clause is the clause by which the parties to a contract agree to submit the conflicts that may rise from their contractual relationship to an arbitral tribunal. A principle of autonomy is associated to this type of clause: on the one hand, the arbitration clause is separable from the main contract; on the other hand, it is independent from any state law. To a certain extent, one may even link this principle to other principles concerning the arbitration clause, such as the Kompetenz-Kompetenz principle. The question is to know whether special rules apply to the arbitration clause.
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Lo, Malad Siu Ming. "How user friendly are the laws for international commercial arbitration : a comparison between Singapore and Hong Kong". access abstract and table of contents access full-text, 2005. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b20833830a.pdf.
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Kritzinger, Julian. "Commercial arbitration in cyberspace: the legal and technical requirements towards a more effective Lex Electronica Arbitralis". Doctoral thesis, University of Cape Town, 2017. http://hdl.handle.net/11427/27312.
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Online Arbitration is an online alternative dispute resolution (OADR) process that resolves disputes without litigation outside national courts. Due to globalisation and increased e-commerce, international commercial online arbitration has become more important and it is therefore essential to look at the legal and technical requirements for a more effective international online arbitration regime or lex electronica arbitralis, specifically focused on disputes that arise from cross-border, low value e-commerce transactions for both goods and services, and especially between online businesses and consumers (B2C), but also between online businesses (B2B). The lex electronica arbitralis should lead to swift outcomes that will be able to be enforced efficiently anywhere in the world, without impairing the requirements of accountability, due process, efficiency, impartiality, independence, fairness, transparency, etc. The 'UNCITRAL Technical Notes on ODR of 2016' follows a non-binding guideline format, so there is currently no legal outline that exclusively regulates online arbitration. Due to this lacuna, the guidelines of the 'Technical Notes' and rules of traditional international commercial arbitration will have to be used as far as they accommodate online arbitration. Due to its unique features, online arbitration however needs an exclusive set of rules that will deal with its legal and technical requirements. The most comprehensive manner to have realised an online arbitration regime or lex electronica arbitralis would have been by the proposed 'UNCITRAL Draft Procedural Rules (DPR) on OADR for Cross-Border E-Commerce Transactions'. Unfortunately, since Working Group III (WG.III), who was mandated by UNCITRAL to compile the 'DPR', could not manage to reach consensus on many aspects, the 'Technical Notes' was adopted instead. The thesis will review WG.III's progress to complete the 'DPR' and how it eventually led to the adoption of the 'Technical Notes'. The 'Technical Notes' still leaves many questions and uncertainties on many of online arbitration's legal and technical requirements that will be pointed out. The thesis will indicate that these legal and technical requirements do not compose insurmountable challenges, but that UNCITRAL will have to address them when they decide to revise the 'Technical Notes' in the future or when they decide to compile a set of legal standards exclusively for online arbitration in the future. The focus will also be directed to the future of international arbitration legislation in a developing country such as SA, while a plea is made to SA lawmakers to make provision for online arbitration.
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Adam, Aisha. "Resolving Dismissal Disputes: A Comparative Analysis of Public Arbitration Bodies in South Africa and England". Master's thesis, University of Cape Town, 2018. http://hdl.handle.net/11427/29771.
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Alternative dispute resolution is often proven to be an effective and preferable means of resolving dismissal disputes. A coherent and cooperative working environment is not always possible in the developing workplace today. Thus, it is critical that an employer and employee are able to resort to effective means of dispute resolution when conflicts arise. The adjudicating system of the courts is notorious for being tedious, expensive and often too legalistic for employment disputes; public arbitration aims to curtail these difficulties by providing an efficient, cost-effective and informal dispute resolution service. Public arbitration bodies seek to overcome the challenges posed by court proceedings by resolving disputes within a specific timeframe, providing applicants with a cost-free service and reducing informalities, in part by limiting the need for legal representation during proceedings. As South Africa was once a colony of Britain, South Africa and England have a historical link which makes them appropriate comparators when determining progression. Based on their similar approach to dispute resolution through arbitration, it is possible to consider the extent to which each country’s employment arbitration service, ACAS in England and the CCMA in South Africa, has achieved its objectives. This dissertation evaluates the use of public arbitration in resolving dismissal disputes in England and South Africa. As a comparative study, it concentrates on and compares the efficiency, accessibility and informality of each country’s employment dispute resolution system, with a particular focus on dismissal disputes. The analysis presented in this dissertation was able to determine the need for improvement in both arbitration systems. It is observed that the deficiencies found in the CCMA can be resolved by learning from the strengths of ACAS, and vice versa. Although each arbitration body aims to provide resolution with the least amount of formalities, both systems can improve their operations by using client feedback and implementing rigorous quality control measures. These recommendations aim to set out ways to improve the effectiveness of each system with the intention of conducting dismissal disputes as succinctly as possible.
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Borhara, Paren Chandrakant. "The doctrine of confidentiality in arbitral proceedings and its implementation to the Tanzanian arbitration system". Master's thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/13187.
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Includes bibliographical references.Confidentiality has been regarded as an essential attribute of arbitration over litigation due to its “private and confidential” nature in arbitral proceedings. Such attribute of arbitration has been subject to debates over recent years from different scholars in the world of arbitration. Two common law jurisdictions have been the result of such debates. The United Kingdom (England) who has for decades assumed the existence of an implied obligation of confidentiality in its arbitration proceedings while Australia has rejected such an implied obligation and have held that confidentiality is not an essential attribute of arbitration. In Tanzania, the current arbitration laws are silent with respect to confidentiality provisions and there seems to be no literature or any article written on the subject matter. This dissertation therefore aims to introduce the doctrine of confidentiality in Tanzania by examining the two common law approaches case-to-case basis and to show how a developing nation like Tanzania could implement one or combination of the different approaches into its arbitration system. Chapter 1 introduces the doctrine of confidentiality in arbitral proceedings by examining how different scholars have interpreted the concept and by distinguishing the doctrine from privacy. This chapter also covers the nature of confidentiality in arbitral proceedings and the main actors involved in preserving the confidentiality obligation in the arbitral process. Chapter 2 provides for an overview of the arbitration system in Tanzania as well covering the position of the doctrine in its arbitration proceedings. Chapter 3 gives a comprehensive overview of the doctrine of confidentiality in both England and Australia and its implementation to the Tanzanian arbitration system. Chapter 4 concludes and provides for recommendations with further research to be carried out on the doctrine of confidentiality in Tanzania in case of a future arbitration dispute arises on the subject matter.
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Venter, Debra. "The UNCITRAL model law on international commercial arbitration as basis for international and domestic arbitration in South Africa / Debra Venter". Thesis, North-West University, 2010. http://hdl.handle.net/10394/4930.
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Commercial arbitration is growing in importance in the modern world. People often use arbitration to ensure adjudication by an expert in the field and although arbitration may not always be quicker, its importance continues to grow especially in international commercial disputes.1 Effective arbitration procedures will have positive consequences for the economical and political relationships between countries.2
The Arbitration Act 42 of 1965 might have sufficed in the past, but as international commercial arbitration is ever increasing and changing, this act has become out–dated. It does not effectively facilitate international commercial arbitration. The Act was primarily designed with domestic commercial arbitration in mind and therefore it is of limited assistance in the international commercial arbitration sphere.
The United Nations Commission on International Trade Law3 has developed the Model Law on International Commercial Arbitration.4 This Model Law or variations thereof can be adopted by a country to regulate international commercial arbitration.5 Many countries choose to adopt the Model Law. The reasons vary but some are that the country’s own arbitration laws were out–dated and needed replacement. The Model Law has proved to be effective and it has become a benchmark for good arbitration legislation.6 Some countries have even adopted the Model Law for use in domestic commercial arbitration disputes. The South African Law Commission7 published a report in 1998 dealing with the possible application of the Model Law on international commercial arbitration in South Africa. It drafted a Draft Bill on International Arbitration (not as of yet promulgated) based on the Model Law.9 One of the points of discussion in the report of the Commission was whether the Model Law should also be made applicable to domestic commercial arbitration in South Africa. The conclusion was that domestic and international arbitration should be dealt with separately and that the present Act regulating domestic arbitration should be amended but not replaced by the Model Law. This implies two arbitration regimes: the International Arbitration Act (dealing only with international commercial arbitration); and the Arbitration Act (dealing only with domestic commercial arbitration) After the Commission’s report had been studied and South Africa’s legal position had been compared with Australia’s legal position, it is conlcuded that Australia is a good example to follow in regard to arbitration practices. It is, however, important to keep South Africa’s own background in mind. A good point made by Australia, is the fact that international commercial arbitration legislation and domestic commercial arbitration legislation, should be kept separate. This will bring about effectiveness and clarity for the users of the said legislation. Furthermore, as end conclusion, the Commission’s view is not favoured in regard to the fact that South Africa’s domestic arbitration legislation should not be based on the UNCITRAL Model Law. It would be a good idea to follow suit with Australia and base both South Africa’s international and domestic commercial arbitration legislation on the UNCITRAL Model Law.Thesis (LL.M. (Import and Export Law))--North-West University, Potchefstroom Campus, 2011.
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Petrochilos, Georgios C. "Procedural detachment in international commercial arbitration : the law applicable to arbitral procedure". Thesis, University of Oxford, 2000. https://ora.ox.ac.uk/objects/uuid:41c82c4d-d708-4cfe-b853-d50e41ea0773.
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This thesis seeks to ascertain the rules of private international law determining the procedural law of international commercial arbitral proceedings. In an Introduction, the author outlines the fundamental notions, introduces the topic and the major doctrines and issues, and sets out his methodology and structure of the work. The thesis examine first, as a preliminary issue, the considerations influencing the assumption of jurisdiction over arbitral proceedings. Chapter 1 discusses the various theories on the lex arbitri (the law supplying the general legal framework of an arbitration) as relevant to the procedural law, and concludes that they are deductive and therefore unable to satisfactorily to determine the applicable procedural law. Chapter 2 analyses major national laws as case-studies of the technique and scope of application of international arbitration law, and suggests a model of legislative and court jurisdiction based on the legal concept of 'seat of the arbitration' and on considerations based on the most appropriate court to control an arbitration. Chapter 3 discusses the obligations of the state of the seat under the European Convention on Human Rights and confirms the findings in Chapter 2. In a second part, the thesis elaborates on the title and extent of permissible municipal law interference. Chapter 4 tests the validity of the propositions derived from Chapters 2 and 3 against arbitral practice and concludes that seldom will arbitrators derogate from the law of the seat. Chapter 5 examines the particular case of arbitrations with states and similar entities. The third part discusses the relevance of compliance with the law of the seat at the stage of enforcement of an award. Chapter 6 deals with the technical issue of whether annulment at the place of making precludes enforcement in other fora. That chapter gives the opportunity to discuss models of separation of international jurisdiction and co-operation between different jurisdictions from a practical perspective. It thus serves as a convenient introduction to Chapter 7, which discusses the more abstract question of the nexus required between an arbitral award and the municipal law of the state of rendition in order for the award to enter, in limine, the scope of application of the international instruments in the field. The thesis ends with Conclusions in the form of model provisions for municipal law and arbitration rules.
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Al-Subaihi, Abdulrahman A. I. "International commercial arbitration in Islamic law, Saudi law and the model law". Thesis, University of Birmingham, 2004. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.497341.
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Österlund, Johanna. "Revealing the Man behind the Curtain : Proving Corruption in International Commercial Arbitration". Thesis, Uppsala universitet, Juridiska institutionen, 2015. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-241752.
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There is unanimity within the arbitration community that corruption is disrupting international trade and that arbitrators must not let arbitration be a safe forum for enforcement of contracts tainted by such illicit acts. Due to the hidden nature of corruption, often hiding behind an agency agreement, the most challenging question facing arbitrators has shown to be how to handle the rules of evidence. Awards show that there is an inconsistency in the treatment of the burden and standard of proof as well as the significance given to circumstantial evidence. Two trends can be spotted where the first approach is to argue that the seriousness of the accusations calls for a heightened standard of proof. The second trend is to argue that the seriousness to the contrary calls for a pragmatic approach to the rules of evidence, allowing a less rigid view on the standard of proof and use of circumstantial evidence or even a shift in the burden of proof. The focus of the thesis is on evidentiary aspects of corruption cases and how arbitrators have dealt with these challenges. The overall question is how arbitrators should handle the rules of evidence in corruption cases from a lege ferenda perspective. It is argued that the inconsistency in the handling of proof is sometimes misguided and that there are reasons to agree on a common starting point for applying the rules of evidence to corruption cases. Arbitrators should realise the frightening fact that it is their weighing of the evidence which is usually decisive for the outcome and accordingly there is a responsibility to conduct this operation carefully. The tools and procedural flexibility to reveal corruption exist even if there is no perfect solution on how to do it.
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Al-Ramahi, Aseel. "Competing rationalities : the evolution of arbitration in commercial disputes in modern Jordan". Thesis, London School of Economics and Political Science (University of London), 2009. http://etheses.lse.ac.uk/2993/.
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International commercial arbitration is recognised as the most widely accepted form of dispute resolution in international trade in both the Middle East and the West. But in the Middle East divergent, competing rationalities are constantly close to the surface and repeatedly collide in arbitration cases of international commercial disputes. The Islamic Middle East focus is on maintaining tradition and safeguarding relationships, features that both stand at the heart of the dispute resolution culture of the region. By contrast, in the West, international commercial arbitration is adversarial and individualistic, following the neo-classical model of law. In recent times when the western model has been superimposed on this deeply entrenched dispute resolution culture, hostility and dissatisfaction have resulted. In addition, instances of perceived or actual Western ignorance and bias against Shari'ah have led to even more resentment on the part of the Arab players. Both Islamic law and tribal customs impose a duty of reconciliation on any intervener in a dispute. This third party must attempt to help the disputing parties reach a settlement that is just and fair. This clash of cultures is explored in detail in this thesis which uses Jordan as the case study. Jordan has a rich and embedded tribal history and traditions, which remain very much a part of contemporary society. The tribes of Jordan are critical stakeholders of the state and their customs are presented as key pillars of the identity of a Jordanian. Reconciliation is a positive feature of Middle Eastern dispute resolution dimensions of which this thesis suggests could be incorporated in the international commercial arbitration model, making it more representative of, and responsive to, a wider variety of cultural traditions.
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Al-Obaidli, Jassim Mohammed A. A. "Arbitration law in Qatar : the way forward". Thesis, Robert Gordon University, 2016. http://hdl.handle.net/10059/1564.
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Qatar is among the fastest growing developing countries in all fields. Since the State of Qatar gained independence from the United Kingdom, the Qatari government has been focusing on the formation of state institutions to keep pace with global development. In 1971, Qatar released the first civil and commercial law. The country established the first step towards the separation of civil and commercial transactions of Islamic law. However, the ever-changing nature of business and global economy requires significant economic and societal changes. With the increase of foreign investors in Qatar, there had to be a law governing arbitration in contracts. Therefore, the government promulgated the arbitration clause in commercial contracts; the first code of civil and commercial procedure contains a chapter of the arbitration. However, the provisions of arbitration included in this law are not compatible with the UNCITRAL Model Law. Although there is a shortage in literature regarding arbitration in Qatar, several studies discussed issues related to arbitration in Qatar and called for the adoption of a new separate arbitration law in Qatar compatible with the UNCITRAL one. This prompted Qatar to work on a new draft law of arbitration, especially after the ratification of the New York Convention 1985 by Qatar. However, these studies did not cover other factors which affect arbitration; such as cultural attitude towards arbitration and issues affecting the practice of arbitration in Qatar. Unlike previous studies regarding arbitration in Qatar, this thesis uses multi-methods to get an answer of the main question of the research, which is: “Will the new Arbitration Draft Law solve all the issues related to arbitration in Qatar, thereby attracting international companies to Qatar and its law for their arbitration?” The thesis reviews the related literature in the first stage. Then it analyses interviews which were held with a number of arbitration stakeholders, the recent Qatari draft law of arbitration, the GCC unified arbitration draft law and the Qatar Financial Centre (QFC) draft law. After that it conducts a comparison between the current provisions of arbitration, the Qatari arbitration draft law and the GCC unified arbitration draft law in light of the UNCITRAL Model Law and the Egyptian Arbitration Law. This multi-methods study results in recommendations which are listed in its conclusion. It is worth mentioning that both the Qatari arbitration draft law and the QFC draft law are considered for the first time in a research study. Also, the interviews which were held for the purpose of this research enrich the outcome as the participants were chosen from various categories of arbitration stakeholder, where some of them represent official entities; such as the Legislation Department of the Ministries Council and some of them are high ranking officials of these entities; such as the Minister of Justice.