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1
Elmejresi, Jamila Ibrahim, Muneer Ali Abdul Rab et Abdul Samat Musa. « مدى سلطة المحكّم في البتّ في اختصاصه في التّشريع الليبي ». Malaysian Journal of Syariah and Law 7, no 1 (29 mai 2019) : 85–96. http://dx.doi.org/10.33102/mjsl.v7i1.131.
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The principle of competence in jurisdiction is an important basis in commercial arbitration for its importance in reducing the time of litigation. The trust of the litigants in the arbitrator does not stop at the subject matter of the dispute but extends to all its preliminary decisions before the judgment in the case. This principle is explicitly adopted in the majority of arbitration centres. However, Libyan jurisprudence does not adopt this principle, and it is left vague under the provisions of article 757 of the Code of Plea on Matters outside the Jurisdiction of the Arbitrators, which could result in a contradiction in the arbitration decisions. Thus, this paper deals with the limits of the authority of the arbitrator in enforcing his jurisdiction under Libyan legislation by relying on the inductive method and analytical deductive approach. This research concludes that the principle of jurisdiction is one of the most important principles of international arbitration. However, Libyan legislators have not properly addressed the issue on the invalidity of the arbitration clause in a true contract due to the ambiguity of Article 757 of the Libyan Code of Procedure on matters beyond the jurisdiction of the arbitrators. There is thus an overlap between the judiciary and arbitration in specifying the jurisdiction of the arbitrator in the texts of the draft arbitration law
2
Banerjee, Arpan, et Ashwin Murthy. « Rand Investments v. Republic of Serbia : Transparency and the Limits of Consent ». Journal of International Arbitration 38, Issue 1 (1 janvier 2021) : 105–22. http://dx.doi.org/10.54648/joia2021006.
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International investment law has consistently grappled with the issue of transparency. While the need for increased transparency in the practice of investment tribunals is generally recognized in principle, in practice the application of transparency norms often raises contentious issues. One common issue is the appropriateness of transparent proceedings where the Bilateral Investment Treaty (BIT) governing the dispute is silent on the matter. A further, more vexed question arises when claimants proceed under multiple BITs with disparate transparency obligations. This situation arose in Rand Investments v. Republic of Serbia, where the claimants instituted an arbitration under both the Canada-Serbia and the Cyprus- Serbia BITs. Noting that the Cyprus-Serbia BIT was silent on the question of transparency, the Majority held that the transparency provisions of the Canada-Serbia BIT could be applied to the entire arbitration on grounds of procedural efficiency. However, the respondent’s arbitrator dissented, finding that the Majority’s approach violated Serbia’s consent and sovereignty. Upon examining the dichotomous approaches adopted by the Majority and the Dissenting Arbitrator, this case comment offers an insight into the potential implications of the case on future investment arbitrations involving multiple BITs with disparate transparency obligations. investment arbitration, dissenting opinion, transparency, Lotus principle, Effet Utile, procedural efficiency, Eurogas v Slovakia, duty of arbitrator, state consent, residual powers of the tribunal, confidentiality.
3
Muganga Didas, Kayihura, John Mwemezi Rutta et Claire Umwali Munyentwari. « Striking a Balance Between Assistance and Interventionism : The Role of Courts in Rwanda-Seated Arbitrations ». Journal of International Arbitration 37, Issue 1 (1 mars 2020) : 143–58. http://dx.doi.org/10.54648/joia2020006.
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The African Arbitration Association was established in 2018 and its headquarters is in Kigali, Rwanda. This choice of location signals that Rwanda has made meaningful strides in improving its arbitration environment, at least in the opinion of African states. Many questions will arise as to whether Rwanda-seated arbitrations do indeed rest in a legally friendly environment, and receive optimum support of courts which act to foster the efficiency and effectiveness of arbitrations. The interplay between courts and arbitral tribunals in dealing with Rwanda-seated arbitrations is the subject of this article. Party autonomy, which broadly underscores the freedom of the parties to decide how their disputes should be resolved, is one of the most important principles in arbitration. This principle naturally translates to the autonomy of the arbitral process and notably the freedom of this process from undue judicial interference. While courts are indispensable in the success equation of the arbitral process, too much judicial intervention in matters of arbitration may have serious repercussions on the efficiency of arbitration. This article examines the autonomy of the arbitral process under the law and practice of arbitration in Rwanda. In doing so, the article discusses different practices in the leading places of arbitration on the interplay between courts and arbitral tribunals in dealing with matters of arbitration and compares these with the corresponding law and practice governing Rwanda-seated arbitrations. It concludes that, with the pro-arbitration stance often demonstrated by the courts in Rwanda and their sparing involvement in the arbitral process, the arbitration environment is as friendly as it is in most other states that are signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention, 1958). Rwanda-Seated Arbitrations, Mandatory Provisions, Party Autonomy, Jurisdictional Challenges, Kompetenz-Kompetenz, Negative Effect of Kompetenz-Kompetenz, Manifestly Void, Stay of Court Proceedings, Judicial Non-Interference, Pro-Arbitration Stance, One-Stop Adjudication
4
Omran, Amr. « The Appearance of Foreign Counsel in International Arbitration : The Case of Egypt ». Journal of International Arbitration 34, Issue 5 (1 octobre 2017) : 901–20. http://dx.doi.org/10.54648/joia2017041.
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The ability of arbitrating parties to select their representatives in international arbitration is an extension of the principle of party autonomy. In Egypt, some uncertainty has existed as to the ability of the parties to appoint non-lawyers and foreign counsel as their representatives in arbitral proceedings. The Egyptian Legal Profession Law restricts the right to appear before arbitral tribunals to members of the Egyptian bar, who must be Egyptian nationals. Recent decisions by the Cairo Court of Appeal and the Egyptian Court of Cassation go some way in amending this position, holding that foreign lawyers can represent parties in arbitrations conducted in Egypt, subject to the parties’ agreement. However, unless the Legal Profession Law and the Arbitration Law are amended, uncertainty will remain.
5
Situmorang, Mosgan. « The Power of Pacta Sunt Servanda Principle in Arbitration Agreement ». Jurnal Penelitian Hukum De Jure 21, no 4 (31 décembre 2021) : 447. http://dx.doi.org/10.30641/dejure.2021.v21.447-458.
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Pacta sunt servanda is a legal principle that applies universally. With this principle, everyone is expected to carry out an agreement made with other parties voluntarily. To enforce the principle by the court in case of dispute in the implementation of the agreement, it requires conditions that must be met. In the context of an arbitration agreement, it must also meet specific rules stipulated in the Arbitration Law. In practice, there is still disobedience to this principle where the parties who have been bound by an arbitration agreement are still taking the litigation in solving their case. In this research, the problems examined are how the principle of pacta sunt servanda is regulated in the arbitration law and how strong this principle is applied. The method used in this research is normative juridical. Based on the research, it is concluded that the implementation of the pacta sunt servanda principle is regulated in several articles of the Arbitration Law. The pacta sunt servanda principle is not valid absolutely because it is deviated by other laws or legal principles. It is recommended that parties in an agreement shall understand the choice of dispute settlement well including the consequences of such choice.
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Nater-Bass, Gabrielle. « Class Action Arbitration : A New Challenge ? » ASA Bulletin 27, Issue 4 (1 décembre 2009) : 671–90. http://dx.doi.org/10.54648/asab2009063.
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With the increasing use of arbitration clauses in standardized mass contracts, questions have arisen regarding the admissibility and applicability of the class action to the field of arbitration. The US appears to have now given «class action arbitrations» the green light. Class actions, therefore, are no longer limited to state court litigations in the US, but are now regularly seen in arbitration proceedings as well. Since the beginning of 2000, many European countries have also started to adopt new legislation regarding class, mass and group action litigation. Thus, Europe can no longer be perceived to be entirely opposed to class or mass action litigation in principle. It could therefore be only a matter of time, before first class action arbitrations are also initiated in Europe. The article seeks to shed some light on various questions arising from the combination of class actions and arbitration. In particular, after analyzing the background of class action litigation in the US, the challenges associated with class action arbitrations are described and the main obstacles to European class action arbitrations discussed. Finally, some thoughts regarding how Europe can prepare itself for class action arbitration are provided.
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Ali, Raqiya Abdul Jabbar, et Majd Almanasrah. « Power of Arbitration Agreement ». Journal of Politics and Law 12, no 2 (30 mai 2019) : 71. http://dx.doi.org/10.5539/jpl.v12n2p71.
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Arbitration certainly plays a pivotal role in characterizing commercial relations that are of various kinds among individuals, and this, in turn, leads to make arbitration clause contained within contracts so as to settle disputes created by such contracts. It, in a way or another, aims at preventing litigants from recourse to a court of law. Instead, litigants should be fully committed to refer their disputes to a well-trusted arbitrator whose responsibility is to adjust their de facto or potential dispute, and should also be committed to put the arbitrator's judgment into effect. This paper sheds some light on determining the principle of power of arbitration agreement when an original contract is prepared. It provides the definition, the concept and the legal foundation of power of arbitration agreement.
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González de Cossío, Francisco. « The Compétence-Compétence Principle, Revisited ». Journal of International Arbitration 24, Issue 3 (1 juin 2007) : 231–48. http://dx.doi.org/10.54648/joia2007017.
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Recently the Mexican and U.S. Supreme Courts issued judgments that impact upon the understanding and scope of one of the most important principles of arbitration law: compétence-compétence. In essence, the view adopted by both Supreme Courts is that, whilst the arbitrator has the authority to rule on its jurisdiction, this authority is confined to challenges involving the validity of the contract as a whole. Should the challenge involve the validity of the arbitration agreement, it will be for the national courts to rule on the same. Interestingly, both cases display an impressive parallelism: not only in outcome, but in reasoning and other procedural aspects. This article addresses this development and concludes that it is mistaken. In the author’s opinion the new theory misconstrues the purposes of compétence and produces law that curtails the effects the principle was originally designed to yield.
9
Armstrong, Michael J., et W. J. Hurley. « Arbitration using the closest offer principle of arbitrator behavior ». Mathematical Social Sciences 43, no 1 (janvier 2002) : 19–26. http://dx.doi.org/10.1016/s0165-4896(01)00085-3.
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Magomedova, M. A., et Sh A. Khizriev. « THE PRINCIPLE OF ESTOPPEL IN THE ARBITRATION (ARBITRATION) ». Law Нerald of Dagestan State University 35, no 3 (2020) : 117–20. http://dx.doi.org/10.21779/2224-0241-2020-35-3-117-120.
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The article is devoted to the institution of estoppel, which is new for Russian law. Based on the analysis of the opinions of scientists regarding the legal nature of estoppel and its definitions, the author comes to the conclusion that the estoppelеin arbitration (arbitration) is a principle of law that guarantees the fair procedural behavior of the parties to the arbitration. The article analyzes the norms of the federal law on arbitration, which contain the rules of estoppel, which made it possible to define estoppel in arbitration proceedings and classify it into types.
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Nazzini, Renato. « THE LAW APPLICABLE TO THE ARBITRATION AGREEMENT : TOWARDS TRANSNATIONAL PRINCIPLES ». International and Comparative Law Quarterly 65, no 3 (juillet 2016) : 681–703. http://dx.doi.org/10.1017/s0020589316000233.
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AbstractThis article examines the problem of the law governing the validity of the arbitration agreement. The cases of Sulamérica in the English Court of Appeal and of FirstLink in the High Court of Singapore demonstrate that leading arbitration jurisdictions around the world can come to diametrically opposite results. In particular, there are currently diverging views as to whether the law applicable to the arbitration agreement should be the law chosen by the parties to govern their substantive legal relationship or the law of the seat of the arbitration. The issue is unlikely to be settled soon at international level. However, without embracing extreme approaches that purport to determine the validity of the arbitration agreement without reference to any national legal system, a more ‘transnational’ approach should be encouraged. This may emerge, based on three structured principles which would be desirable for international convergence, namely the non-discrimination principle, the estoppel principle and the validation principle. These principles can be developed without conflicting with the conventional conflicts-of-laws approach which was adopted by the English Court of Appeal in Sulamérica.
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Leite, António Pinto. « Independência, Imparcialidade e Suspeição de Árbitro ». Revista Brasileira de Arbitragem 7, Issue 25 (1 mars 2010) : 104–18. http://dx.doi.org/10.54648/rba2010006.
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ABSTRACT: The independence and impartiality of arbitrators is of the essence in the development of international trade arbitration. The fact that parties may appoint non-neutral arbitrators has given rise to negative reactions within the international arbitration community. However, there are some questions that need to be considered, namely: the non-neutrality of party-appointed arbitrators and the presiding arbitrator's role ensuring fair trial, tacit acceptance by one party of the non-neutrality of the arbitrator appointed by the other party and the motion of suspicion on the arbitrator within such context, the contractual nature of arbitration and the appointed arbitrators' disclosure duties, the criteria to appraise the arbitrator's subjective impartiality and the principle of good faith, the partyappointed arbitrator's role of cultural translation within international arbitration and the party's possible research duties on the independence of the arbitrator appointed by the other party.
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Simamora, Y. Sogar, Sujayadi Sujayadi et Yuniarti Yuniarti. « BINDING EFFECT OF ARBITRATION CLAUSE TO THIRD PARTIES : PRIVITY OF CONTRACT DOCTRINE Vs. PIERCING THE CORPORATE VEIL ». Yuridika 33, no 1 (8 février 2018) : 171. http://dx.doi.org/10.20473/ydk.v33i1.7256.
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The arbitration agreement is the legal basis for the arbitration forum to examine and adjudicate the dispute which arose from a private relationship where the parties agree to settle the dispute in arbitration forum. As an agreement, the arbitration agreement still applies the principles of contract, including the principle of privity of contract. In the doctrine of privity of contract, an agreement is only binding and have legal effect only to the parties, the agreement in principle, cannot provide profit or loss to a third party. In the arbitration agreement, only the parties are bound by the arbitration agreement that can become parties to the case investigation. However, in the development of arbitration practice also shows that a third party, not a signatory to the arbitration agreement can be held accountable through an examination of the arbitration case. Such a situation is possible if the third party is resident as a holding company or shareholder of a limited liability company, in which the limited liability company is bound by an arbitration agreement, and the holding company or shareholder proven to perform actions through a subsidiary or a limited liability resulting harm the other party.
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Wiratami, Wiratami. « Legalitas Kewenangan Badan Arbitrase Nasional Indonesia dalam Penerapan Prinsip Competence-Competence ». Acta Comitas 4, no 2 (21 juillet 2019) : 261. http://dx.doi.org/10.24843/ac.2019.v04.i02.p09.
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According to the doctrine of the principle of competence-competence, the arbitration board has jurisdiction to declare itself whether he has the authority to hear and decide on arbitration disputes. What is meant by the determination of jurisdiction is related to the validity of the arbitration clause and the validity of an agreement. The arbitral tribunal has the authority to evaluate or determine the validity of the arbitration agreement or the validity of the arbitration clause if the parties dispute the matter. The principle of competence-competence is one of the principles regarding the jurisdiction of this arbitration board that has been generally and widely accepted as a principle doctrine in international trade arbitration. This principle is one of the principles regarding the jurisdiction of arbitration board that have been widely accepted and generally as a principle in international commercial arbitration. The legal problems in this research relate to the norm vacancies regarding the competence-competence principle in Law No. 30 of 1999 concerning Arbitration and Alternative Dispute Resolution (hereinafter abbreviated as AAPS Law).Solving research problems using normative legal methods with a legal approach, cases, and analysis of legal concepts. The results of this reseach that (1) The Indonesian National Arbitration Board has been regulated in article 1 point 8 of the Arbitrtion Law and Alternative Dispute Resolution juncto article 31. (2) The provisions of article 18 paragraph 1 of the rules of the Indonesian National Arbitration Board can be used as the legality of authority in determining the validity of the arbitration agreement, if the agreement of the parties “ is not null and void” or is considered to have never existed in its entirety.
Menurut doktrin prinsip comptence-competence, arbitrase mempunyai jurisdiksi didalam menyatakan sendiri apakah arbitrase tersebut mempunyai kewenangan untuk mendengarkan dan memutuskan sengketa arbitrase. Penentuan kewenangan arbitrase terkait dengan keabsahan suatu klausul arbitrase maupun perjanjian arbitrase apabila mereka yang membuat perjanjian mempersoalkan mengenai hal itu.Doktrin prinip competence-competence ini merupakan satu dari sekian prinsip mengenai jurisdiksi arbitrase. Doktrin prinsip ini telah dikenal luas sebagai doktrin prinsip dalam arbitrase perdagangan internasional. Permasalahan hukumnya berkaitan dengan adanya kekosongan norma hukum mengenai prinsip competence-competence dalam Undang-Undang Nomor 30 tahun 1999 tentang Arbitrase dan Alternatif Penyelesaian Sengketa (selanjutnya disebut UU AAPS). Penelitian ini menggunakan metode hukum normatif dengan pendekatan perundang-undangan, kasus dan analisa konsep hukum. Hasil dari penelitian ini bahwa (1) BANI telah diatur dalam ketentuan Pasal 1 angka 8 UU AAPS juncto Pasal 31. (2) Ketentuan Pasal 18 ayat (1) Peraturan BANI dapat dijadikan landasan legalitas kewenangan BANI dalam menentukan keabsahan perjanjian arbitarse, apabila perjanjian para pihak untuk menyelesaikan sengketa melalui arbitrase tidak “batal demi hukum” atau dianggap tidak pernah ada secara keseluruhan.
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Agus, Azwir. « Embodiment Principles of Clearing Justice in Consumer Arbitration ». Hasanuddin Law Review 4, no 3 (31 décembre 2018) : 383. http://dx.doi.org/10.20956/halrev.v4i3.3067.
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The realization of the principle of justice in proving the settlement of consumer disputes through arbitration in Indonesia is equally important. Undeniable, there is a weakness of the consumer protection law, both substantial norms and formal law. This article is normative legal research that refers to norms and legal principles in the legislation or court decisions. The results show that the proof is one of the trials that plays an important role. In general, the verification system is distinguished based on civil law and common law understandings influenced by various proof system theories such as the presumption of liability principle adopted in the Indonesian consumer protection law. The principle of justice in the consumer arbitration system is different from the arbitration verification system that is universally applicable in Indonesia. The ultimate goal of choosing consumer arbitration is to get substantial justice that is more dignified and not just obtaining formal justice.
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Fröhlingsdorf, Josef. « La Reforma Parcial de la Ley Española del Arbitraje ». Revista Brasileira de Arbitragem 8, Issue 30 (1 avril 2011) : 93–102. http://dx.doi.org/10.54648/rba2011021.
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ABSTRACT: With the reform of the current arbitration act, Spain tries to unify the criteria of the case law in all kind of questions related to arbitration, concentrating the competence in the High Courts of the Autonomous Regions, remaining the first instance courts the only competent for the enforcement of arbitral awards. The corporate arbitration for the solution of disputes in the so called "sociedades de capital" and with its shareholders is expressively ruled. It is no longer necessary that in arbitration proceedings according to law, the arbitrator is a lawyer admitted to a bar, being sufficient to be jurist. The previous activity as mediator is not compatible with the arbitrator. The arbitral award always need to have a motivation, not being possible another agreement between the parties. In case of an institutional arbitration procedure, the institution has to procure for the capacity and the independency of the arbitrator, who also has to contract an insurance police. The non-compliance with the six months period for rendering the award, which is maintained, does not affect neither the validity of the arbitration clause nor the award. In case of an insolvency procedure, in principle the arbitration commitment is maintained. Finally, the law provides for a mechanism for the resolution of disputes between the General Administration of the State and its different entities.
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Yanovytska, Anna. « “Publicity” and “Confidentiality in Arbitral Judiciary : Approaches to Understanding and Application ». Kyiv-Mohyla Law and Politics Journal, no 7 (29 décembre 2021) : 95–108. http://dx.doi.org/10.18523/kmlpj249908.2021-7.95-108.
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The growing interest in alternative forms of dispute resolution has prompted attention to the peculiarities of the application of the principles of publicity and confidentiality in the arbitration. It is determined that the observance of the principle of publicityof the legal proceeding is the basis for ensuring justice. However, approaches to the application of this principle in arbitration differ both from the point of view of researchers and within the framework of legal regulation at the national and international levels. Some believe that the application of the principle of publicity will destroy the features of arbitration as such. However, the presented article demonstrates other approaches. The position was supported that the principle of confidentiality should be distinguished from the concepts of “privacy” or “closed trial”. In this context, publicity is often compared to concepts such as “openness”, “clarity” and “transparency” of the proceedings. Of concern is some regulatory restriction on the application of the principle of publicity, which affects the level of awareness of the activities of arbitration courts among the public and lawyers who intend to use alternative forms of dispute resolution. It is hoped that such further research will help solve similar problems.
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Al-Fadhel, Faisal. « Respect for Party Autonomy under Current Saudi Arbitration Law ». Arab Law Quarterly 23, no 1 (2009) : 31–57. http://dx.doi.org/10.1163/157302509x395632.
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AbstractArbitration is an important means for settling disputes between commercial parties, in parallel with the general judicial system. Certain basic standards, such as party autonomy and the supportive role of courts, are required in any modern arbitral legislation if it is to prove effective. This article will focus on the principle of party autonomy, fundamental to modern law, under the current Saudi Arbitration Law. Several issues will be discussed and constructive recommendations given regarding: the consistency in terminology used, specifically with respect to "arbitration instrument", "arbitration clause" and "submission agreement"; the professional qualifications and experience of arbitrators; the choice of language for international arbitration; woman's role as arbitrator; the status of non-Muslim arbitrators; and modernisation of the Saudi Arbitration Law of 1983 and its Implementing Regulations of 1985.
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Supeno, Supeno, Muhtar Dahri et Hafid Zakariya. « Kedudukan Asas Hukum dalam Penyelesaian Sengketa Melalui Arbitrase Berdasarkan Undang-Undang Nomor 30 Tahun 1999 ». Wajah Hukum 3, no 1 (30 avril 2019) : 51. http://dx.doi.org/10.33087/wjh.v3i1.45.
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The enactment of Law No. 30 of 1999 concerning Arbitration and Alternative Dispute Resolution is a step forward in dispute resolution in Indonesia, especially the settlement of disputes in the field of trade in response to the deadlock in the settlement of trade disputes that require resolutions quickly, cheaply, informally, and maintained interests and the secrets of the parties. However, there are still some rules and practices that are not in line with the principle of arbitration law itself. In this paper will be reviewed and analyzed the position of the legal principle used in resolving disputes through arbitration, so it is hoped that these legal principles can be upheld by all interested parties, if there are legal rules and legal practices that are contrary to this legal principle, they can be ruled out.
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AYALEW, Negesse Asnake. « Long Rang Trans-Boundary Air Pollution Smelter Case Arbitration Outcome ». International Journal of Environmental, Sustainability, and Social Science 1, no 1 (31 mars 2020) : 9–14. http://dx.doi.org/10.38142/ijesss.v1i1.11.
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The purpose of the investment is to bring benefits to the owners and sustainable development for the local community and for future generations. Arbitration is the process of resolving legal disputes between individuals, groups and countries. Every investment activity must ensure sustainable development to respect the rights of future generations. However; Canadian zinc smelting companies emit sulfur dioxide and cause air pollution in the United States. This created a dispute between Canada and the United States, then they agreed to settle it through a neutral arbitration court. As a result, this arbitration court ruling creates two principles of international environmental law primarily; the polluter pays the principle and obligation of the state not to damage the environment outside its jurisdiction. This arbitration award establishes the concept of Harm across borders and the principle of polluter pays to ensure the sovereignty of international environmental law. Therefore; if disputes arise between countries, they can resolve them through peaceful dispute resolution mechanisms such as negotiation, mediation and arbitration
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Габов, Андрей, Andrey Gabov, Ольга Беляева et Olga Byelyayeva. « To the Issue on Contestation of an Arbitration Clause ». Journal of Russian Law 3, no 10 (5 octobre 2015) : 0. http://dx.doi.org/10.12737/13257.
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Authors of article analyze algorithm of actions of the arbitration court in a situation when the respondent declares that didn´t sign the contract which contains the arbitration clause. Authors formulate the conclusions on the basis of research of the basic principles of arbitration trial, and also lawsuits. Authors note that the main beginning of arbitration trial is free will of its parties, consider types of the arbitration agreements practiced in the Russian Federation, explain value of the principle of competence – competence and autonomy of the arbitration clause in activity of the arbitration court. In article the algorithm of actions of the arbitration court at purpose of handwriting examination is stated, and also by its results, importance of check of a being of dispute regarding possibility of its permission in the arbitration court is noted.
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Lee, Byung-Mun, et Eunok Park. « A study on separability and validity of arbitration agreement in international business contracts-with advices and suggestions for Korean merchants ». Journal of Korea Trade 20, no 2 (6 juin 2016) : 149–66. http://dx.doi.org/10.1108/jkt-04-2016-0009.
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Purpose – The purpose of this paper is to provide Korean merchants and practitioners who are not English native speakers with the practical advices and suggestions in drafting arbitration agreements. Design/methodology/approach – The doctrine of separability of arbitration and the competence-competence principle are studied based on the rules of international conventions and internationally recognized arbitral institutes. In addition, the laws of two common law jurisdictions, which are the USA and the UK are discussed with the Korean arbitration law, which follows the civil law system. This study also includes analysis of cases in order to show application of these two principles to practice and to give practical advices and implications to practitioners. Findings – Most national legislatures and jurisdictions approve the doctrine of separability of arbitration agreement and the competence-competence principle under international commercial arbitration. When there is a dispute regarding the existence or the validity of arbitration agreement, it is determined based on the prima facie test without being affected by the main contract in which the arbitration agreement is inserted. In practice, however, there are many occasions where the arbitration agreements are void or inoperable because of its contents. Many practical advices and suggestions are provided. Originality/value – This paper analyzes arbitration agreements which are used in practice so that it provides many practical advices to practitioners in terms of legal effects of languages and linguistic use.
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Kurnosov, Aleksandr. « Risks of "Pocket Arbitration" Ad Hoc : Intermediate Results of the Arbitration Reform in Russia ». Bulletin of Kemerovo State University. Series : Humanities and Social Sciences 2022, no 4 (12 décembre 2022) : 333–41. http://dx.doi.org/10.21603/2542-1840-2022-6-4-333-341.
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The article deals with the arbitration court formed to resolve a specific dispute. One-party court, or the so-called "pocket arbitration", is a situation where arbitrators cannot comply with the principle of impartiality due to the fact that the arbitral tribunal is a structural unit of one of the parties or part of the same holding company. As a result of the reform of arbitration proceedings in Russia, the niche of "pocket" permanent arbitration courts has been filled with situational arbitration, where the party with a stronger negotiating position determine the arbitrator and the rules. This phenomenon is becoming popular in disputes between microfinance organizations and borrowers, which, given the particular sensitivity of this area, requires public law intervention. The freedom of the parties to the contract is limited in order to prevent infringement of the rights and legitimate interests of the economically weaker party. Arbitration model is liberal as it is based on the autonomy of will. Arbitration ad hoc has its advantages in unique disputes where the parties are ready to determine the figure of the arbitrator and the rules for considering the dispute. However, this institution demonstrates signs of distortion, which means it needs restrictions. The existing regulatory restrictions and clarifications were defined by the Plenum of the Supreme Court of the Russian Federation, but they proved ineffective in practice. The author proposes to ban situational arbitration in case of loan agreements with microfinance organizations.
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Musjtari, Dewi Nurul, et Riki Ali Nurdin. « The Application of Final and Binding Principles in Sharia Economics Dispute Resolution Through Basyarnas ». Kanun Jurnal Ilmu Hukum 23, no 2 (17 août 2021) : 341–57. http://dx.doi.org/10.24815/kanun.v23i2.20439.
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This study aims to determine the application of the final and binding principles in sharia economic dispute resolution through Basyarnas. This research method used empirical research with secondary and primary data. Secondary data was complemented by primary and secondary legal materials, while primary data was obtained through interviews. The data analysis was carried out in a descriptive qualitative manner. The results indicated that the final principle is applied to the settlement of sharia economic disputes through Basyarnas when the parties have received the sharia arbitration decision and do not object to the decision issued by Basyarnas, or when one of the parties submits an objection to the sharia arbitration decision, and the arbitrator re-signed the revised decision in accordance with Article 58 of Law Number 30 of 1999 and Article 20 of the 2017 Basyarnas Rules of Procedure. The final sharia arbitration decision will have binding power for the parties (binding) after the decision is registered with the Religious Court in accordance with the respondent’s regional laws.
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Robach, Malcolm, et Giulio Palermo. « Judicial Review of Arbitrators Fees A Swiss law perspective ». ASA Bulletin 32, Issue 3 (1 septembre 2014) : 595–608. http://dx.doi.org/10.54648/asab2014066.
Texte intégralRésumé :
The present article explores positive law on establishment of arbitrator fees in domestic and international Swiss arbitration in light of the principle that no one may be judge of his own cause. The article notes that the principle of nemo iudex in causa sua appears to be applied more stringently to international proceedings seated in Switzerland than to Swiss domestic arbitration proceedings. With regard to relevant legal provisions and case law, it compares cases where the arbitrators are brought to fixing their own fees with cases where such fees are fixed by a neutral third party such as an arbitral institution. Subsequently it examines the degree to which state courts exercise control over these decisions looking at potentially competent courts and applicable law.
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Mohs, Florian, et Ingeborg Schwenzer. « Arbitration Clauses in Chains of Contracts ». ASA Bulletin 27, Issue 2 (1 juin 2009) : 213–35. http://dx.doi.org/10.54648/asab2009022.
Texte intégralRésumé :
To foster multi-party arbitrations French, US, and Austrian law allow, with significant nuances, for the extension of arbitration clauses through chains of contracts to claims by the ultimate buyer as a third party to the contract containing the arbitration clause against the first seller/manufacturer. The possibility of an extension of an arbitration clause in the case of a chain of contracts is inextricably intertwined with the substantive law question of whether or not the ultimate buyer may take direct recourse against a remote seller. Its admissibility cannot be regarded as a principle of international arbitration but is solely given if the domestic law of a jurisdiction that acknowledges the extension of an arbitration clause to a third party in a chain of contracts applies. Because no direct contractual relationship exists between the ultimate buyer and the remote seller, the buyer’s direct claims sound in tort. The law applicable to these claims by virtue of the conflicts rules on products liability or tort should decide on the extension of the arbitration clause as well. Remaining procedural disadvantages for the middle-man in a chain of contracts can only be addressed by contract drafting.
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Talwar Mouland, Satya. « Immunities And Arbitration : A New Lex Specialis Regime ». German Law Journal 22, no 8 (décembre 2021) : 1555–68. http://dx.doi.org/10.1017/glj.2021.75.
Texte intégralRésumé :
AbstractThe interaction between immunities and jurisdiction is complex. One lacuna is whether the international legal principle of state immunity is a rule or principle in its own right or an exception to a pre-existing jurisdiction. In the context of international arbitration disputes, this distinction is significant. States have been relying on immunity to exclude the jurisdiction of national courts to support the international arbitral process. This Article argues there is now a growing set of common and consistent practice according to which state immunity operates as a rule or principle lex specialis to a more general set of rules or principles governing the enforcement jurisdiction of national courts.
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Wenger, Werner. « Ein Kontrapunkt : Die neue Schiedsgerichtsordnung der Handelskammer Deutschland-Schweiz ». ASA Bulletin 30, Issue 4 (21 janvier 2012) : 735–45. http://dx.doi.org/10.54648/asab2012066.
Texte intégralRésumé :
The German-Swiss Chamber of Commerce, head-quartered in Zurich, has issued revised Arbitration Rules, effective as from 1 July 2012. The revision follows in many aspects the trends shown in other recently revised rules in institutional arbitration by further enhancing procedural efficiency and by introducing a fast track procedure. However, as compared with other institutional arbitration rules, the German-Swiss Chamber of Commerce sets a counterpoint by explicitly providing for arbitral proceedings structured in accordance with the procedural tradition familiar to the users in the geographic area of its clientele: The proceedings will follow the inquisitorial, not the adversarial system. The arbitrator shall attempt to reconcile the parties in various stages of the proceedings; he may even use caucus sessions to achieve such goal. The common law system of presenting evidence (e. g. written witness statements) is not admitted in principle; it is the arbitrator who puts the questions to the witnesses.
29
Cooke, Robin. « Party Autonomy ». Victoria University of Wellington Law Review 30, no 1 (1 juin 1999) : 257. http://dx.doi.org/10.26686/vuwlr.v30i1.6022.
Texte intégralRésumé :
This is an augmented version of a paper delivered at the International Centre for Alternative Dispute Resolution, New Delhi, in December 1998. Party autonomy describes the principle whereby the parties to a dispute have full autonomy when making their arbitration agreement. The author discusses the Arbitration and Conciliation Act 1996 of the Parliament of India, focusing on the principle of party autonomy. He describes his formative experiences to arbitration in cases like Wellington City v National Bank of New Zealand Properties Ltd, the Arbitration and Conciliation Act itself, Indian case law before the Arbitration and Conciliation Act, and a brief look at New Zealand's Arbitration Act 1996.
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Hutabarat, Samuel. « YURIDIKSI PENGADILAN DAN ARBITRASE DALAM MEMERIKSA SUATU SENGKETA DIKAITKAN DENGAN PRINSIP COMPETENCE -COMPETENCE DAN KLAUSUL ARBITRASE ». Jurnal Paradigma Hukum Pembangunan 6, no 1 (16 juillet 2021) : 116–33. http://dx.doi.org/10.25170/paradigma.v6i1.2603.
Texte intégralRésumé :
The doctrine of the principle of competence explains that arbitration which has jurisdiction in the statement itself is based on the authority to hear and decide an arbitration dispute. The authority possessed by Arbitration even though there is an arbitration clause in a belief as a way of resolving disputes arising in the agreement. The determination of the arbitration authority is related to the validity of an arbitration clause or their agreement arbitration agreement which makes the agreement in question regarding this matter
The legal problems in this research relate to the norm vacancies regarding the competence-competence principle in Law No. 30 of 1999 concerning Arbitration and Alternative Dispute Resolution (hereinafter abbreviated as AAPS Law).Solving research problems using normative legal methods with a legal approach, cases, and analysis of legal concepts.
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Roosdiono, Anangga W., Maria Jasmine Putri Subiyanto et Muhamad Dzadit Taqwa. « THE GOOD FAITH PRINCIPLE IN TRUST AND CONFIDENTIALITY ON THE ARBITRATION PROCESS ». Law Review, no 1 (12 juillet 2022) : 102. http://dx.doi.org/10.19166/lr.v0i1.5254.
Texte intégralRésumé :
<p>This article is to demonstrate that the principle of good faith (<em>iktikad baik</em>) manifests in the principles of trust and confidentiality. Not only is good faith one of the key causes of the emergence of a dispute, it also indeed has a great influence on the success of resolving that dispute. Despite its importance, we have found that many disputing parties do not apply this principle to resolve their disputes. Even though, this principle plays a huge part on maintaining trust and confidentiality at the same time. The purpose of this paper is to increase awareness on the application of the good faith principle, noting that there are still realities where this principle is not applied. In this paper, we first elaborate on the descriptive comprehension of all these three principles. Afterwards, we observe how good faith connects with the other two principles. Through the manifestations of good faith, we have concluded that the <em>a quo </em>principle acts as a key basis for the application of the other two principles. In trust, applying good faith means making the arbitration trustworthy, whereas in confidentiality, maintaining good faith keeps the information confidential to irrelevant parties. In the conclusion, we have pointed a few concrete resolutions on maintaining the principle of good faith, trust, and confidentiality. This is found by observing the two factors that cause the realities when the principle of good faith is not applied, which consists of the normative and human factor.</p>
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Ghorbanpur, Amir Mehdi, et Sara Khakestarian. « The Similarities and Differences between the Arbitration and Judgement Verdicts in Iran’s Laws ». Review of European Studies 9, no 1 (21 février 2017) : 261. http://dx.doi.org/10.5539/res.v9n1p261.
Texte intégralRésumé :
The main purpose of current research is to determine the similarities and differences between the arbitration and judgement verdicts in Iran’s laws. The results of current research indicate that there are many differences and similarities in the arbitration and judgement field in Iran’s laws. General similarities, attributes of judge and arbitrator from religious jurisprudence’s view, verdicts in Iran’s internal laws, investigation with reasons, and final sentence in the arbitration and judgement verdicts can be mentioned as some of these similarities. Also about the differences, some cases like: observance of the principles and adducing to the legal articles at the time of composing the verdict, observance of the formalities and judgement provisions in issuance of verdict, verdicts in terms of requesting for the revision, ability to appeal to the Supreme Court, rehabilitation, jurisdiction, protestation, issuance of verdict by judges and arbitrators, procedural conditions in composing the verdict, regard to recite the verdict in terms of being revisable or non-revisable, third-party entry ability, attracting the third-party, features of verdicts in terms of the ability to prove, possibility to issue the request for garnishee and temporary commandment, correction of verdict, the features of verdicts in terms of the res judicata, competence for issuance of reformatory report, competence for issuance of preliminary (interlocutory) decree, moratorium for objecting about the verdict, the third-party’s ability to object about the verdict, having the relative effect, changing the verdict (judge exemption, arbitrator exemption), communication of verdict, the manner of judgement investigation with courts, investigation dependent on provisions of civil judgement rules, investigation dependent on judgement principles (correspondence principle, observance of the defense right of parties), competence for investigation of the legal affairs, start to investigate, the investigation range, the investigation place, being overt or non-overt, investigation and transmission to the another person, difference between arbitration and judgement in the religious jurisprudence and judge and arbitrator positions from the religious jurisprudence are some results obtained at current research.
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Ritz, Philipp. « Privacy and Confidentiality Obligation on Parties in Arbitration under Swiss Law ». Journal of International Arbitration 27, Issue 3 (1 juin 2010) : 221–45. http://dx.doi.org/10.54648/joia2010013.
Texte intégralRésumé :
While the privacy of arbitration proceedings is generally accepted, confidentiality is still a hotly discussed topic. After giving an overview of the legal situation on confidentiality in various jurisdictions, this article identifies the legal basis of the privacy principle under Swiss law. Thereafter, it is examined whether the parties to arbitrations in Switzerland are bound to a confidentiality obligation. This article also addresses which law applies to the questions of privacy and confidentiality in arbitrations held in Switzerland, and whether arbitral tribunals or state courts are competent to decide on the existence of a confidentiality obligation.
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Landolt, Phillip. « The Inconvenience of Principle : Separability and Kompetenz-Kompetenz ». Journal of International Arbitration 30, Issue 5 (1 octobre 2013) : 511–30. http://dx.doi.org/10.54648/joia2013033.
Texte intégralRésumé :
The principles of separability and Kompetenz-Kompetenz were developed to favour the effectiveness of arbitration as a means of dispute settlement. This article seeks to demonstrate that in the modern day the beneficial effects of these principles have been ordained in statute in most arbitration law systems, but frequently such statutes also maintain reference to their being principles. It is contended in the article that the persistence of such principles is the source of multiple inconvenience. The article recommends that reference to the two principles as principles be excised from statute, and those of these principles' effects which are beneficial to arbitration be prescribed without more.
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Beffa, Luca. « Challenge of international arbitration awards in Switzerland for lack of independence and/or impartiality of an arbitrator Is it time to change the approach ? » ASA Bulletin 29, Issue 3 (1 septembre 2011) : 598–606. http://dx.doi.org/10.54648/asab2011066.
Texte intégralRésumé :
It is almost unanimously admitted that the case law of the Swiss Federal Tribunal concerning Art. 190(2) PILS is "ultra-restrictive". Recent case law shows that this is particularly true with respect to challenges based on an alleged irregular or improper composition of the arbitral tribunal (Art. 190(2) lit. a PILS). The recent decisions discussed in this paper give the disturbing impression that our Supreme Court is adopting too relaxed an approach to the concepts of independence and impartiality of arbitrators, in particular in sports arbitrations. Renowned arbitrators have recently sounded the alarm with respect to the negative consequences that such an "ultra-restrictive" approach could have, in particular with respect to the attractiveness of Switzerland as a venue for arbitration. Although strict procedural requirements are often desirable in order to prevent parties from filing groundless challenges that may delay the proceedings, it could be detrimental to arbitration in general, and to Swiss arbitration in particular, if fundamental principles such as the principle of independence and impartiality of arbitrators were neglected. This paper seeks to propose possible remedies that could be implemented in order to ensure a more effective control of the independence and impartiality of arbitrators, not only by the Swiss Federal Tribunal, but also by arbitral institutions.
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Prytyka, Yuriy, Vyacheslav Komarov et Serhij Kravtsov. « Reforming the Legislation on the International Commercial Arbitration of Ukraine : Realities or Myths ». Access to Justice in Eastern Europe 4, no 3 (1 août 2021) : 117–28. http://dx.doi.org/10.33327/ajee-18-4.3-n000074.
Texte intégralRésumé :
International commercial arbitration (ICA) is an alternative way to resolve foreign economic disputes. Initially, arbitration itself was seen as a neutral court in which the parties to the dispute were independent of national courts. Arbitration agreements and decisions must be recognised by national courts without any complications or review procedures. Although granting commercial parties some independence to agree that their dispute will be considered by independent arbitrators is a key principle in ICA, the struggle for supremacy between national laws and national courts on the one hand and the autonomy of the parties and the independence of the international arbitration system on the other continue. Over the years, national laws have sought to control, regulate, interfere with, or support ICA in various ways. To counter attempts to ‘localise’ ICA and promote equality in this area, private, professional institutions and international and intergovernmental organisations have developed a significant body of law designed to ensure self-government and dispute settlement procedures in ICA. Nevertheless, international commercial arbitration cannot exist independently of national jurisdictions. Examining the activities of ICA, it can be seen that the importance and impact of national arbitration laws and national judicial supervision are significantly reduced, but the lex fori still plays an important role in arbitration. Thus, the reform of the normative regulation of international arbitration also affected Ukraine. The article analyses the radical changes proposed by the legislator regarding the procedure for establishing institutional arbitrations, expanding the arbitrability of disputes.
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Muhammad, Dr Nasiruddeen. « Resolution of Maritime Disputes : Ad-hoc vs Institutional Mechanisms ». International Conference on Advances in Business, Management and Law (ICABML) 2, no 1 (19 mars 2019) : 189–92. http://dx.doi.org/10.30585/icabml-cp.v2i1.281.
Texte intégralRésumé :
The maritime industry had for long, recognized the relevance and significance of arbitration as a method of dispute resolution. The industry has been utilizing quasi-ad-hoc mechanism in conducting its arbitrations. Of recent, the industry is witnessing a phenomenal shift from the traditional quasi –ad-hoc mechanism to institutional mechanisms whereby special administrative centers dedicated to the resolution maritime disputes are being established to administer the dispute resolution. Recently, the government of Dubai in the United Arab Emirates, pursuant to Decree No (14) of 2016 had established Emirates Maritime Arbitration Center with the objective of settling local and international maritime disputes using alternative dispute resolution methods. The paper investigates the two approaches of ad-hoc vs institutionalism of administering dispute settlement in the maritime industry from a tailored analytical tool of ‘access to arbitration’ mirrored on the well-established legal principle of access to justice.
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Azzali, Stefano. « Neutrality, Independence and Impartiality of Arbitrators : Uniformity of Definitions, Dissimilarity of Applications ». BCDR International Arbitration Review 6, Issue 1 (1 juin 2019) : 93–106. http://dx.doi.org/10.54648/bcdr2021006.
Texte intégralRésumé :
Neutrality of the arbitrator is one of the fundamental features of arbitration. It is not a universal but a relative notion, inevitably not identical in all parts of the world, at any given moment. What should be avoided is a different application of this concept by the same individual, depending on the role played: very strict when he/she acts as counsel (and also different if acting for the Claimant or for the Respondent, as well as if appointing the co-arbitrator or the Chair), more tolerant and flexible when he/she is in the role of arbitrator. A lack of coherence, depending on which side of the barricade the same individual may be, may affect users’ trust in and reliance on arbitration. Arbitral institutions play a fundamental role in fighting, with realism, this attitude, being aware that neutrality of arbitrators is a principle that does not tolerate any compromise.
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Liew, Ying Khai. « EXPLAINING ASSIGNMENTS OF ARBITRATION AGREEMENTS ». Cambridge Law Journal 80, no 1 (mars 2021) : 101–29. http://dx.doi.org/10.1017/s0008197321000039.
Texte intégralRésumé :
AbstractThe case law and literature to date have struggled to locate the rationale for the assignability of arbitration agreements. While different justifications have been proffered, each of them rests on questionable premises. This has given rise to a host of uncertainties over the rules which apply in practice. This paper proposes that a satisfactory rationale can be found in the “acceptance principle”. This principle indicates, first, that arbitration agreements which are not actual burdens can be assigned, and second, that the assignability of arbitration agreements is grounded in the assignee's acceptance in the form of non-disclaimer of the assignment. Bringing the acceptance principle to the fore not only provides a theoretically sound justification for the assignability of arbitration agreements; it also suggests how the practical uncertainties in this area of law can be resolved satisfactorily.
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Martins, Amanda Athayde Linhares. « Idioma, Sede e Lei Material Estrangeiros na Arbitragem com aAdministração Pública ». Revista Brasileira de Arbitragem 8, Issue 29 (1 mars 2011) : 74–107. http://dx.doi.org/10.54648/rba2011004.
Texte intégralRésumé :
ABSTRACT: This paper studies the admissibility of arbitration with the Public Administration. The text begins by approaching the arbitrability in Brazil in its subjective and objective aspects. It is argued that the arbitration is admissible when the Public Administration acts in its ius gestionis. The fall of three paradigms are required to reach that conclusion. Firstly, that the unavailability of the public interest is not necessarily opposed to the availability of the proprietary interest. Secondly, that there is no jurisdictional conflict between the rule establishing the exclusive legal jurisdiction and the arbitration clause. Thirdly, that there is no incompatibility between confidentiality in arbitration and the principle of publicity. The factual proof of admissibility is explained through a case analysis. Finally, the following discussions are proposed: the use of a foreign language in the procedure, in light of the principle of publicity, the existence of a place of arbitration abroad, in face of the principle of immunity of jurisdiction, and the use of a material law from another country, given the principle of legal certainty and public order. The conclusion that is argued is the admissibility of arbitration with the Public Administration on those contexts.
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Koepp, Johannes, et David Turner. « A Massive Fire and a Mass of Confusion : Enka v. Chubb and the Need for a Fresh Approach to the Choice of Law Governing the Arbitration Agreement ». Journal of International Arbitration 38, Issue 3 (1 juin 2021) : 377–94. http://dx.doi.org/10.54648/joia2021019.
Texte intégralRésumé :
The recent judgment of the Supreme Court of the United Kingdom in Enka v. Chubb has provided an answer, at least provisionally, to the thorny question of how the proper law of an arbitration agreement is to be determined under English law. The majority of the Supreme Court (in a 3–2 split) held that in the absence of an express or implied choice of law by the parties, the ‘default rule’ should be that the arbitration agreement is presumed to be governed by the law of the arbitral seat, as the law ‘most closely connected’ to the arbitration agreement. Yet the Supreme Court’s reasoning is not wholly satisfying, and the two dissenting judgments present powerful arguments for taking a contrary approach. This article proposes a means to sever this enduring Gordian knot: drawing from the in favorem validitatis principle applied by the Swiss, Dutch and Spanish legal systems in determining the substantive validity of an arbitration agreement, we suggest extending this principle to encompass questions of the scope of an arbitration agreement and arbitrability. Under this approach, instead of focusing on determining the proper law of the arbitration agreement, the courts need only ask themselves two questions: (i) does the claim in question fall within the scope of the arbitration agreement, as interpreted under any of the potentially applicable laws, and (ii) is it arbitrable under any of those laws? (UK) Supreme Court, Enka v Chubb, Arbitration agreement, Proper law, Choice of law, Governing law, In favorem validitatis, Favour principle, Arbitral seat/seat of arbitration, Scope of the arbitration agreement
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Andriani, Agustini. « Akibat Hukum Pembatalan Putusan Arbitrase dalam Kaitannya dengan Prinsip Final and Binding ». AL-MANHAJ : Jurnal Hukum dan Pranata Sosial Islam 4, no 1 (13 juin 2022) : 25–36. http://dx.doi.org/10.37680/almanhaj.v4i1.1528.
Texte intégralRésumé :
Arbitration is an alternative effort to resolve disputes outside the court whose decisions are final and have permanent legal force that binds the parties (final and binding). However, the Arbitration and Dispute Resolution Law, namely Law Number 30 of 1999, also regulates efforts to annul the arbitration award which has legal consequences for the disputing parties. This paper is a descriptive normative legal research. The types of data used are secondary data in the form of primary legal materials and secondary legal materials. This paper discusses the legal consequences of annulment of arbitral awards which are related to the principle of Final and Binding of Arbitral Awards. This paper is descriptive in that it describes the general description of the annulment of the Arbitration Award, then describes the Final and Binding Principles in the Arbitration Award. As well as matters relating to the annulment of the arbitral award and its legal consequences. In this paper, the author concludes that the legal consequences of the annulment of the arbitration award by the District Court are that the arbitral award is considered to have never existed. In addition, with the cancellation of the arbitral award in Law Number 30 of 1999, it gives a vague meaning to the principle of final and binding which in reality the losing parties or feel that their interests are not accommodated in the arbitral award makes the decision not final and binding due to an attempt to cancel the arbitral award
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Oganezova, S. R. « Most-Favored-Nation Clause in the Practice of Establishing the Jurisdiction of the International Center for the Settlement of Investment Disputes (ICSID) ». Actual Problems of Russian Law 16, no 3 (5 avril 2021) : 160–67. http://dx.doi.org/10.17803/10.17803/19941471.2021.124.3.160-167.
Texte intégralRésumé :
Based on the analysis of arbitration practice and doctrine, the author identifies the principles of interpretation of the most-favored-nation clause in order to resolve the issue of the jurisdiction of the International Center for the Settlement of Investment Disputes (ICSID) by arbitration. The author concludes that the arbitration should be guided not only by the principle of literal interpretation of the international investment agreement and, in case of uncertainty, establish the intention of the contracting states to apply the most-favored-nation clause to the process of resolving investment disputes, but also take into account the public policy of the contracting states.
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De Brabandere, Eric. « The (Ir)relevance of Transnational Public Policy in Investment Treaty Arbitration – A Reply to Jean-Michel Marcoux ». Journal of World Investment & ; Trade 21, no 6 (15 décembre 2020) : 847–66. http://dx.doi.org/10.1163/22119000-12340196.
Texte intégralRésumé :
Abstract In his article ‘Transnational Public Policy as a Vehicle to Impose Human Rights Obligations in International Investment Arbitration’, Jean-Michel Marcoux investigates whether international investment tribunals can rely on transnational public policy to impose human rights obligations on investors. While I generally side with the idea that international human rights as such are highly relevant in (some) international investment arbitrations, I argue in this article that transnational or truly international public policy as a concept is largely, and as a matter of principle, irrelevant in investment treaty arbitration. Secondly, even if one were to accept that transnational public policy has a role to play, I question the usefulness of framing various human rights issues as questions of ‘transnational public policy’.
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Abad Shahpori, Saeid Eshragh, et Zeynab Porkhaghan Shahrezaei. « Position of Commercial Arbitration in Resolving Disputes among Customers and Banks in Iran ». Journal of Politics and Law 10, no 3 (1 juin 2017) : 174. http://dx.doi.org/10.5539/jpl.v10n3p174.
Texte intégralRésumé :
In today’s business environment and financial markets, banks are responsible for financial intermediaries and their relationships with customers are established in form of signed contracts. We are witnessing disputes in monetary transactions; thus, parties tend to resolve their conflicts outside the framework of court due to continue cooperation in the future and preserve the value of money and the principle of confidentiality. This research has been conducted to determine the position of commercial arbitration in resolving disputes among banks and customers. Research method is descriptive-analytical and its practical aspects can be used in the banking system. Data has been gathered from theoretical library discussions, the ideas of legal experts, the principles finance and banking sciences, and banking conventions. The results indicate that banks do not like to refer files to arbitration and monetary market has no arbitration committee to resolve disputes. Therefore, banks have used alternative methods such as negotiation and referral to banking expert; in some cases, the role of expert is close to arbitrator. In other cases, resolving the dispute does not arbitration with respect to social order and legislation. Based on findings, main banking services are provided in the form of a contract written by banks in the framework of the Article 10 of the civil law. This contract contains terms. Customers have to accept the terms and sign the contract; otherwise, banks will not provide the considered services.
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Golubenko, К. A., et E. V. Voskresenskaya. « Possibilities and Limits of Implementation by the Parties of the Arbitration Agreement and the Principle of Autonomy of Will : Current Trends ». Sociology and Law, no 1 (2 avril 2021) : 88–93. http://dx.doi.org/10.35854/2219-6242-2021-1-88-93.
Texte intégralRésumé :
The article analyzes the principle of the autonomy of the will, which is fundamental in the regulation of the settlement of disputes arising from the foreign economic relations of the parties. The most important principle under consideration, in particular, allows the parties to decide which law will be applied to regulate their relationship and which court or arbitration will be given the competence to resolve their disputes. The authors note the tendency of the legislative sphere and law enforcement practice to give the parties as much freedom as possible when concluding and implementing the terms of an arbitration agreement. This, of course, increases the possibility of implementing the principle of autonomy of the will of the parties. The authors come to the conclusion that there is also a tendency to form more specific limits of the autonomy of the will when concluding an arbitration agreement. The article analyzes the materials of the judicial and arbitration practice of the Russian jurisdiction, when the autonomy of the will at the conclusion of an arbitration agreement is limited. The authors highlight the criteria for the possibility of applying an arbitration agreement-validity and enforceability, the practice of which is quite contradictory.
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Joneydi, Laya, et Shahab Jafari. « Competence-Competence Principle in Iranian Arbitration Law ». ASA Bulletin 39, Issue 4 (1 décembre 2021) : 855–70. http://dx.doi.org/10.54648/asab2021075.
Texte intégral
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Popović, Dejan, et Gordana Ilić-Popov. « Arbitration in international tax law : legal obstacles to agreeing ». Anali Pravnog fakulteta u Beogradu, no 2/2018 (14 juillet 2018) : 47–69. http://dx.doi.org/10.51204/anali_pfub_18202a.
Texte intégralRésumé :
Article 25 (5) of the OECD Model Convention contains a provision that defines the failure of the mutual agreement procedure to solve a dispute whether a person has been taxed in a manner that is not in accordance with the provisions of the Convention within two years as a deferred condition for activating the arbitration clause. The parties in arbitration are the Contracting States rather than the taxpayer who initiated it. Despite the advantages of the arbitration dispute resolution, numerous developing countries do not accept the arbitration clause stating that it would violate their fiscal sovereignty from two reasons. Firstly, the authors point out that relying on the „baseball arbitration“ would diminish the relevance of the objection that arbitration jeopardises administrative independence. Secondly, the objection that the state cannot renounce its right to tax is also untenable since it overlooks the difference between the state’s sovereign inalienable right to introduce tax and its right to collect a disputed amount. Neither remaining two constitutional-law arguments are valid. From the point of view of the rule of law principle, there is no justification to confine arbitration only to the issues concerning the interpretation of facts. From the point of view of the principle of equality, the constitutional courts will not require symmetrical access to arbitration in domestic tax disputes since they tend to interpret this principle in the manner that it applies to the persons in the same or similar legal situations – namely, to those who meet the requirements for arbitration stipulated in a tax treaty. The authors conclude that Serbia should reassess its negative attitude on tax arbitration, which will make it easier for her to deal with the obligation emerging in the accession negotiations to adopt the EU Arbitration Convention as a part of the acquis.
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Andreeva, V. V. « PRINCIPLE OF VOLUNTARINESS IN HANDLING CIVIL CASES BY CAS ». Juridical Analytical Journal 15, no 1 (10 avril 2020) : 79–81. http://dx.doi.org/10.18287/1810-4088-2020-15-1-79-81.
Texte intégralRésumé :
This articles looks into the principle of voluntariness as the basic grounds for international sports arbitration. Analysis of existing regulatory legal acts in sports field indicates that this principle is not observed. The author point out the general recognition of this principle around the world and draws the conclusion that without wilful consent of the parties to appeal to the international sports court of arbitration, the case cannot be reviewed in this court. Violation of this principle should be the undisputed basis for refusal in its enforcement.
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ALQUDAH, Yassin Ahmad, et Abdullah Ahmed ALKHSEILAT. « The Extent of the Arbitrator's Immunity from Civil Liability Compared to the Judge's Immunity (Comparative Study) ». Journal of Advanced Research in Law and Economics 9, no 3 (15 juin 2020) : 711. http://dx.doi.org/10.14505/jarle.v11.3(49).02.
Texte intégralRésumé :
This study aims at the legal dimensions of the legislative deficiency of the arbitrator's immunity from civil liability in the Jordanian Arbitration Law, which the legislator granted to the judge.
The researchers reached the need to amend the provisions of the Jordanian Arbitration Law to grant immunity to the arbitrator, especially since the work is similar to that of a judge.
The judicial immunity of the arbitrator is civil liability in comparison with the immunity of the judge
Jordanian and Egyptian lawmakers have imposed restrictions on the civil (commercial) arbitrator's responsibility for the mistakes he makes while performing his arbitral mission, This is to encourage arbitration, compared to the position of the arbitrator over the judge's function, hence granting the Jordanian legislator and the Egyptian legislator and the judgments of the commercial arbitrator judicial immunity similar to that enjoyed by the judge but much less than the immunity of the judge.
We therefore consider it appropriate to examine the arbitrator's immunity, beginning with a shedding light on the judges' immunity from civil responsibility, given the similarity in the task entrusted to both the judge and the arbitrator, which is to resolve disputes by a legally binding and enforceable judgment.
This requires us to present the principle of judicial immunity from civil liability, and the reasons that support and oppose such immunity, in order to determine the judicial immunity of arbitrators of civil liability.