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1
de Menezes, Caio Campello. "CIETAC e Suas Novas Regras de 2012." Revista Brasileira de Arbitragem 9, Issue 34 (June 1, 2012): 7–16. http://dx.doi.org/10.54648/rba2012019.
Повний текст джерелаАнотація:
ABSTRACT: The China International Economic and Trade Arbitration Commission -- CIETAC arbitration rules have been recently reviewed. The new edition came into force on May 1st 2012. The arbitration rules were under review since 2005 and they became more "international". Among the changes that were implemented, some should be highlighted, such as (i) CIETAC may now administrate arbitrations not governed by their own arbitration rules; (ii) the seat of arbitration may be freely chosen by the parties and no longer the People's Republic of China shall be the mandatory seat of arbitration; and (iii) the arbitrators have their powers extended in order to grant interim measures under the laws governing the arbitration.
2
Wilson, David. "The Resurgence of Scotland as a Force in International Arbitration: The Arbitration (Scotland) Act 2010." Journal of International Arbitration 27, Issue 6 (December 1, 2010): 679–87. http://dx.doi.org/10.54648/joia2010038.
Повний текст джерелаАнотація:
The Arbitration (Scotland) Act 2010 has introduced significant and welcome changes to the law and practice of arbitration in Scotland, sweeping away centuries of inconsistency and uncertainty. Following the much-needed and long-awaited codification of the old common law, will Scotland’s popularity improve as a cost-effective and efficient seat for arbitration on the international stage? This article details the history of arbitration in Scotland and explains how the provisions of the 2010 Act will rectify the unsatisfactory system of arbitration that it is overruling. Although it remains to be seen to what extent the 2010 Act will affect Scotland’s reputation as a credible seat for international arbitrations, both Scots lawyers and non-lawyers alike are optimistic that the impact will be positive.
3
Rodovalho, Thiago, and Leandro Tripodi. "Sede da Arbitragem e Regulamento da Instituição Arbitral: uma Relação de Autonomia." Revista Brasileira de Arbitragem 12, Issue 46 (May 1, 2015): 48–55. http://dx.doi.org/10.54648/rba2015022.
Повний текст джерелаАнотація:
ABSTRACT: This study aims to analyze the relevance of the seat of arbitration, especially in international arbitration, seeking more that arbitration-friendly headquarters, but also it is a neutral seat for the parties and neutral in relation with the dispute (neutrality of the seat) and the relation between the seat of the arbitration and the seat of the arbitration institution, in particular, the relationship between the regulation of the Arbitration Chambers and the arbitration acts, discussing the need for more flexibility.
4
Kun, Fan. "Prospects of Foreign Arbitration Institutions Administering Arbitration in China." Journal of International Arbitration 28, Issue 4 (August 1, 2011): 343–53. http://dx.doi.org/10.54648/joia2011028.
Повний текст джерелаАнотація:
There has been much concern recently as to whether foreign arbitration institutions may administer arbitrations with the seat in mainland China. This article makes a legal analysis of the potential problems arising in this matter, demonstrates the judicial attitudes towards enforcing awards rendered in mainland China but administered by foreign arbitration institutions, and further analyzes the legal obstacles in the enforcement of such awards.
5
Gastorn, Kennedy. "International Arbitration on Investment Disputes in Natural Wealth and Resources Sector in Tanzania." Eastern Africa Law Review 47, no. 2 (December 31, 2020): 1–37. http://dx.doi.org/10.56279/ealr.v47i2.1.
Повний текст джерелаАнотація:
This article analyses rules relating to international arbitration in natural wealth and resources sector under the newly enacted Arbitration Act of 2020 of Tanzania. The Act is enacted to facilitate amicable settlement of disputes outside the court system as well as enforceability of arbitration agreements. In a broader framework, the Act responds to the challenges faced by Tanzania in managing and addressing many issues emerging in arbitration cases especially investor-state arbitration. Such reforms are not uniquely Tanzanian but form part of the larger emerging reforms in investment regime in key strategic economic sectors in most of the developing world. This is reflected within the ongoing UN Commission on International Trade Law (UNCITRAL) working group on reforming the investor-state dispute settlement system. Under the new law, all disputes involving natural resources can only be arbitrated in Tanzania, as a seat of arbitration, whether under the auspices of the bodies established in Tanzania or otherwise. Likewise, all disputes arising from extraction, exploitation or acquisition and use of natural wealth and resources can only be adjudicated in accordance with the laws of Tanzania. To this end, the Act complements similar relevant provisions under the Natural Wealth and Resources (Permanent Sovereignty) Act and the Natural Wealth and the Resources Contracts (Review and ReNegotiation of Unconscionable Terms) Act of 2017. The Arbitration Act 2020 is aimed at creating a viable regime which will encourage alternative dispute resolution and establish a conducive framework for the enforcement of arbitral award. This paper analyses the Arbitration Act 2020 whether it complies with the best international practices in arbitration regime. It also argues that limiting seat of arbitration and the governing law of international arbitrations on disputes in natural wealth and resources sector are significant reforms to the existing investments landscape in the sector in Tanzania. They form a part of the larger picture of emerging reforms in investment regime in key strategic economic sectors in most of the developing world. As a capital importing state, Tanzania, like other developing nations, seek to avoid the perceived frustrations of international arbitrations to obtain a fair deal on investment agreements on her natural resources through an effective arbitration regime and foreign investments. Indeed, these reforms are likely going to bring back many Tanzanian cases from abroad to Tanzania as a safe seat of arbitration. Keywords: International arbitration, seat of arbitration, governing laws, natural wealth and resources sector, Bilateral Investment Treaties (BITs).
6
Sumant Kolhe, Varad. "PASL V. GE: Indian Parties’ Fillip to Foreign-seated Arbitrations, but at What Cost?" Asian International Arbitration Journal 17, Issue 2 (October 1, 2021): 193–208. http://dx.doi.org/10.54648/aiaj2021010.
Повний текст джерелаАнотація:
Can two Indian parties elect a foreign seat of arbitration? This question has been the epicentre of a long-standing divergence in judicial opinions across Indian courts. However, this divergence was put to rest by the Supreme Court of India in PASL Wind Solutions (P) Ltd. v. GE Power Conversion (India) (P) Ltd. (decision of 20 April 2021), ruling in favour of Indian-parties’ autonomy to elect a foreign-seat of arbitration. Recognizing party autonomy as the “brooding spirit” of arbitration, the Supreme Court overruled two judgments of the Bombay High Court (Seven Islands Shipping Ltd. v. Sah Petroleums Ltd and Addhar Mercantile Pvt. Ltd. v. Shree Jagdamba Agrico Exports Pvt. Ltd.) for not understanding the law (on foreign seated arbitrations between Indian parties) in its correct perspective. Further, it clarified that the term ‘international commercial arbitration’ (in the proviso to section 2(2) of Indian Arbitration and Conciliation Act, 1996) was ‘party-centric’, in the context of section 2(1)(f) of the Indian Arbitration and Conciliation Act, 1996. On the other hand, the same term, when seen in the context of section 44 of the Indian Arbitration and Conciliation Act, 1996, was qualified as ‘place-centric’. This note considers the ramifications of the Supreme Court’s approach in reaching these conclusions, identifying and addressing significant gaps and ambiguities that arise therefrom. Indian Parties, International Commercial Arbitration, Party Autonomy, Foreign Seat of Arbitration (International Chamber of Commerce), Place of Arbitration, Venue of Arbitration, Foreign Substantive Law, Foreign Awards, Enforceability of Foreign Awards, Public Policy, Overruling
7
Ms. Charu Shahi, Dr Sachin Rastogi,. "THE CONCEPT OF INSTITUTIONAL ARBITRATION – NEED FOR THE HOUR." Psychology and Education Journal 58, no. 2 (February 20, 2021): 6601–9. http://dx.doi.org/10.17762/pae.v58i2.3194.
Повний текст джерелаАнотація:
The Indian lawmakers have an agenda to promote India as an Arbitration hub for solving disputes, thus, they brought about certain changes to the Arbitration and Conciliation Act, 1996 by way of an amendment namely, the Arbitration and Conciliation (Amendment) Act, 2015 (“2015 Amendments”) which aimed at achieving this goal by facilitating speedy and efficacious resolution of disputes through arbitration. It is widely accepted that India prefers ad hoc arbitration over institutional arbitration. Though various arbitral institutions have been set up in India, especially in the last five years, ad hoc arbitration continues to be the preferred mode of arbitration. Moreover, a large number of international arbitrations involving Indian parties are seated abroad and administered by foreign arbitral institutions. In order to promote institutional arbitration in India, it is imperative that: (a) Indian parties involved in domestic and international arbitrations are encouraged to shift to institutionally administered arbitrations rather than resort to ad hoc arbitrations; and (b) India becomes a favored seat of arbitration for international arbitrations, at the very least in matters involving Indian parties. With this background, this paper delineates certain issues that exist in the Institutional Arbitration in India and identifies areas for reform in the Indian arbitration, to strengthen the existing arbitration mechanisms, and also to put forward focus areas for promoting institutional arbitration in India.
8
Lagarde, Mercedes Torres. "Liability of Arbitrators in Dubai: Still a Safe Seat of Arbitration." ASA Bulletin 33, Issue 4 (December 1, 2015): 780–807. http://dx.doi.org/10.54648/asab2015060.
Повний текст джерелаАнотація:
The recent law suits filed against arbitrators in Dubai seated arbitrations, have shown to be a hot topic in the international arbitration community. Unfortunately, to date, there has not been enough information shared with the public, other than hearsay, on the decisions issued by the Dubai Courts on those matters. Through five cases originally administered by the Dubai International Arbitration Centre (DIAC), the Courts have dismissed the allegations made against the arbitral tribunals. The particularities, Courts’ decisions and analysis contained in this research seek to shed light on the arbitration friendly approach followed by the Dubai Courts, which should continue to hold Dubai as a safe seat for arbitration practitioners to accept appointments.
9
Taiwo, Oluwafikunayo D. "The Restrictive Approach to Legal Representation in Arbitration Proceedings and Its Unintended Consequences in Nigeria." Journal of International Arbitration 37, Issue 2 (April 1, 2020): 271–88. http://dx.doi.org/10.54648/joia2020013.
Повний текст джерелаАнотація:
The issue of legal representation in arbitration proceedings accounts for one of the sub-factors of ‘formal legal structure’ and ‘national arbitration law’ that disputing parties consider before choosing a seat of arbitration. Indeed, the ability of disputing parties in arbitration to freely select their desired representatives is embedded in the foundational principle of party autonomy. In Nigeria, a literal interpretation of the national arbitration rules prevents parties from selecting persons not admitted to the Nigerian bar as their representatives in arbitration proceedings. This article examines the impact of this restrictive approach on the attractiveness of Nigeria as a seat of arbitration. The article identifies scope for reform in the law and makes suggestions to create a more liberal legislative and judicial framework in order to promote Nigeria as a preferred seat for arbitration. Arbitration, Legal representation, Seat, Nigeria
10
Barry, Matthew. "The Role of the Seat in International Arbitration: Theory, Practice, and Implications for Australian Courts." Journal of International Arbitration 32, Issue 3 (May 1, 2015): 289–323. http://dx.doi.org/10.54648/joia2015012.
Повний текст джерелаАнотація:
A complex question in international commercial arbitration is the extent to which an enforcement court should defer to the decisions of courts at the seat of arbitration. In the recent case of Gujarat, the Federal Court of Australia held that it would generally be inappropriate for an Australian court, called upon to enforce an arbitral award under the International Arbitration Act 1974 (Cth) (IAA), to reach a different conclusion on the same question as that reached by the court at the seat of arbitration. This article critically examines Gujarat in light of the broader debate about the role of the seat in international arbitration jurisprudence. The article contends that the role of the seat is far from settled. In the first place, there are competing theories of international arbitration, each according to a different degree of importance to the seat of arbitration. Second, enforcement courts applying the provisions of the New York Convention have taken very different approaches to the decisions of courts at the seat of arbitration. US courts, for example, generally defer to the decisions of courts at the seat; French courts, on the other hand, tend to disregard the decisions of courts at the seat. Nevertheless, this article contends that the deferential approach taken by the Federal Court in Gujarat and the US courts is the correct one. Australian courts should, for strong policy reasons, defer to the decisions of courts at the seat of arbitration, save in exceptional cases where such decisions are shown on the basis of cogent evidence to be partial and dependent or in violation of basic principles of justice. This approach promotes finality and efficiency in international arbitration whilst upholding the international rule of law.
11
Aje-Famuyide, Olufunke, and Nimisore Akano. "Challenges of Nigeria as a Preferable Seat of International Commercial Arbitration." Reality of Politics 18, no. 4 (December 31, 2021): 11–32. http://dx.doi.org/10.15804/rop2021401.
Повний текст джерелаАнотація:
Arbitration has over the years gained prominence as a preferred method for dispute resolution especially for cross-border commercial disputes. One of the reasons is that the parties want to resolve their dispute in privacy and obtain an enforceable award as soon as possible. The choice of the arbitral seat during the negotiation of any international commercial arbitration agreement is perhaps one of the most overlooked influential aspects over the course of the arbitral procedures. The importance of a wise choice of an arbitral seat generally has two aspects, one of logistical convenience and the other is of a legal effect. For reason of the crucial legal effects of the place of arbitration, the parties have to be sure that they have chosen the best suitable jurisdiction as the seat of arbitration. The article will further analyse the concept of the seat of arbitration, its role, and importance in international commercial arbitration. It will also examine by reviewing the drawbacks of Nigeria as a preferred seat of international arbitration, particularly on the arbitration legislation and the respective judicial supervision and support in effectively conducting arbitration within the jurisdiction.
12
Alghanim, Bashayer. "The Role of Party Autonomy in Choosing Procedural Law in Arbitration: the rules of the WIPO Arbitration and Mediation Centre." International Review of Law 9, no. 1 (December 1, 2020): 207–31. http://dx.doi.org/10.29117/irl.2020.0096.
Повний текст джерелаАнотація:
While the role of parties’ autonomy is of minimal importance when discussing procedures in cases including foreign element presented before the courts, it plays an important role in the choice of applicable law in arbitration procedures. The reason for this is that an arbitrator is not subject to law of jurisdiction, in the same way as a national judge. In response to the development of protection of intellectual property, the World Intellectual Property Organization “WIPO” organization has established an arbitration and Mediation centre, described as the first institutional international center specialized in settling intellectual property disputes, and has given the parties freedom to choose the law applicable to procedure. The study concludes that it is essential to introduce amendments to the WIPO arbitration rules to guarantee legal clarity and prevent confusion, such as imposing characterization to the law of the selected seat of arbitration, the need for explicit choice on the law governing the arbitration procedures, and clarification about what is meant by the law of the seat of arbitration in the absence of choice.
13
Gómez Jene, Miguel. "Nombramiento de árbitros en supuestos de sede indeterminada (a propósito del Auto del TSJ de Madrid de 8 mayo de 2018) = Appointment of arbitrators in cases of indeterminate seat (decision of the High Court of Justice of Madrid of 8 May 2018)." CUADERNOS DE DERECHO TRANSNACIONAL 11, no. 1 (March 11, 2019): 758. http://dx.doi.org/10.20318/cdt.2019.4647.
Повний текст джерелаАнотація:
Resumen: Comentario al auto dictado por el TSJ de Madrid en virtud del cual declara su competencia judicial territorial para nombrar árbitro en un supuesto en el que la sede del arbitraje no estaba determinada y ninguna de las partes tenía residencia en España.Palabras clave: arbitraje internacional, nombramiento de árbitro, sede indeterminada del arbitraje, residencia de las partes en el extranjero, Foro de necesidad.Abstract: Commentary on the resolution of the High Court of Madrid declaring its territorial jurisdiction to appoint an arbitrator in a case in which the seat of the arbitration was not determined and neither the parties had its residence in Spain.Keywords: international arbitration, appointment of the arbitrator, indeterminate seat of the arbitration, residence of the parties abroad, Forum necessitatis.
14
Lu, Song. "The New CIETAC Arbitration Rules of 2012." Journal of International Arbitration 29, Issue 3 (June 1, 2012): 299–322. http://dx.doi.org/10.54648/joia2012019.
Повний текст джерелаАнотація:
Arbitration rules play a vital role in the promotion of an international arbitration institution. They also serve as one of the major attractions to potential arbitration users of that institution's service. In 2012, China International Economic and Trade Arbitration Commission (CIETAC) has again effected a substantial revision of its arbitration rules, which came into force on 1 May 2012. This article discusses the main changes made this time to the CIETAC Rules, which touch upon a number of important issues including consolidation of arbitrations, the appointment of arbitrators, tribunal-ordered interim measures, the seat of CIETAC arbitration, exchange and service of documents, arb-med-arb approach, suspension and termination of arbitral proceedings, etc. Practical advice relating to those changes has also been provided where appropriate.
15
Yuen, Peter. "Arbitration Clauses in a Chinese Context." Journal of International Arbitration 24, Issue 6 (December 1, 2007): 581–96. http://dx.doi.org/10.54648/joia2007043.
Повний текст джерелаАнотація:
This article looks at some of the key issues which arise when drafting arbitration agreements in the context of commercial and M&A transactions, with a focus on China-related transactions. The article highlights and examines the key considerations to be taken into account when negotiating and drafting the arbitration agreement. These include the scope of the arbitration agreement, the seat of the arbitration, the governing law of the arbitration agreement, the process for choosing the arbitrator(s), the choice of institutional or ad hoc arbitration, and the choice of language for the arbitration. The author then further considers other issues which may impact upon the drafting of arbitration agreements, such as disputes involving multiple parties, sole option clauses, expedited proceedings and interim relief.
16
Peter, Adolf. "Procedural Considerations In Cietac Arbitrations Seated In Vienna." Asian International Arbitration Journal 17, Issue 1 (May 1, 2021): 41–78. http://dx.doi.org/10.54648/aiaj2021003.
Повний текст джерелаАнотація:
This article analyses some of the most important legal implications of international arbitrations seated in Vienna and administered by the newly established European Arbitration Centre of the China International Economic and Trade Arbitration Commission (CIETAC). First, the article focuses on consolidations, joinders and multiple contracts, particularly in the context of supply chains involving multiple parties. The article demonstrates that the CIETAC Rules offer a more effective approach for consolidations, and the Vienna Rules vest the arbitral tribunal with a broader discretionary power for granting a joinder. Second, the article addresses arbitration agreements involving a consumer. If the seat of an arbitration is in Austria, strict legal requirements have to be fulfilled regarding the conclusion of arbitration agreements with consumers. Third, the article covers interim and conservatory measures by comparing the CIETAC Rules with the Vienna Rules and introduces possible solutions for the CIETAC European Arbitration Centre to submit an application for interim or conservative measures to the competent Chinese courts. Fourth, the article discusses the requirement of foreign (non-Chinese) elements in contracts to be able to select non-Chinese arbitration institutions and non- Chinese substantive law. Are foreign funded enterprises (seated in Mainland China) allowed to agree on a Vienna-seated arbitration administered by the CIETAC European Arbitration Centre? consolidations, joinders, supply chains, CIETAC European Arbitration Centre, interim measures in China, foreign-related arbitrations, arbitration agreementswith consumers, CIETAC arbitrations seated in Vienna.
17
Risvas, Michail. "INTERNATIONAL LAW AS THE BASIS FOR EXTENDING ARBITRATION AGREEMENTS CONCLUDED BY STATES OR STATE ENTITIES TO NON-SIGNATORIES." International and Comparative Law Quarterly 71, no. 1 (January 2022): 183–209. http://dx.doi.org/10.1017/s0020589321000476.
Повний текст джерелаАнотація:
AbstractThis article explores the role of international law in relation to the extension of arbitration agreements contained in contracts concluded by States (or State entities) with non-signatory State entities (or States). As contract-based arbitrations involving States or State entities are on the rise, identifying the legal framework governing which parties are covered by the relevant arbitration agreements is of practical importance. The analysis demonstrates that international law forms part of the relevant law, alongside other applicable laws including law of contract, law of the seat and transnational law, concerning the extension of arbitration agreements concluded by States or State entities to non-signatories. Previous analyses have neglected the role of international law by not distinguishing contract-based arbitrations involving private parties from contract-based arbitrations involving States or State entities. Public international law recognises that arbitration agreements can be extended to non-signatories on the basis of implied consent, or abuse of separate legal personality and estoppel. Therefore, foreign investors can rely on international law to extend arbitration agreements to non-signatories in arbitrations conducted under investment contracts concluded by States or State entities, even if the relevant domestic law is agnostic or hostile to this. This has significant legal, and practical, importance.
18
Hill, Jonathan. "DETERMINING THE SEAT OF AN INTERNATIONAL ARBITRATION: PARTY AUTONOMY AND THE INTERPRETATION OF ARBITRATION AGREEMENTS." International and Comparative Law Quarterly 63, no. 3 (June 19, 2014): 517–34. http://dx.doi.org/10.1017/s0020589314000293.
Повний текст джерелаАнотація:
AbstractThe seat of arbitration is fundamental to defining the legal framework for international arbitral proceedings. Although parties are able to select the arbitral seat, arbitration clauses are frequently ‘pathological’, failing to designate the seat or failing to do so clearly. If the seat is not clearly identified by the parties’ agreement, the court may be called upon to decide which country is the seat (typically, in order to determine whether or not it has jurisdiction to entertain certain types of arbitration application). The simplest situations are ‘uni-directional’ cases in which, in procedural terms, the parties' agreement points expressly or impliedly towards a single location. More difficult are ‘pluri-directional’ cases in which the agreement refers to more than one possible location. While certain scenarios are relatively straightforward, what constitutes a choice by the parties is more complicated if the parties' agreement contains signposts pointing in different directions. In ‘uni-directional’ cases, the English courts have developed a series of interpretative guidelines which solve most of the problems posed by potentially ambiguous clauses. However, in ‘pluri-directional’ situations, the English case law is less convincing. In such cases, the courts have not approached the identification of the arbitral seat in a consistent way; they have not laid down a clear doctrinal framework; and they may be legitimately criticized for displaying a measure of ‘forum preference’.
19
Alkasawneh-Jordan, Sakher, and Ala’eldin Ababneh. "The Relationship Between Arbitration and Jurisdiction Within Europe Post the West Tankers Case." Business Law Review 33, Issue 4 (April 1, 2012): 82–86. http://dx.doi.org/10.54648/bula2012019.
Повний текст джерелаАнотація:
This study aims to explore to what extent the West Tankers case affects arbitration in Europe, and how the relation between arbitration and jurisdiction can be harmonised. It was argued that the suitable solution in resolving the problem of contradictory judgments between European courts was by deleting the arbitration exclusion from the Regulation and giving the court of the arbitration seat exclusive jurisdiction in all matters relating to arbitration. This solution will offer certainty and predictability for the parties because they choose the seat of arbitration which will lead to encouraging the party autonomy principle. The result will be flourishing arbitration within the European community and in the meantime will insure ''mutual trust'' and the smooth circulation of judgments within Europe.
20
Sabater, Aníbal. "When Arbitration Begins Without a Seat." Journal of International Arbitration 27, Issue 5 (October 1, 2010): 443–72. http://dx.doi.org/10.54648/joia2010026.
Повний текст джерелаАнотація:
A relatively unusual occurrence a few years ago, the commencement of arbitration proceedings without agreement on the seat has recently become a significant threat to the timely and expedient resolution of disputes. This is due in part to the proliferation of investment treaties that provide for non-International Centre for Settlement of Investment Disputes (ICSID) arbitration without setting out further procedural details. This article contains a detailed roadmap for arbitration participants faced with the need to determine how and where to establish the seat after the case has started.
21
Blanke, Gordon. "Free Zone Arbitration in the United Arab Emirates: DIFC v. ADGM: (Part I)." Journal of International Arbitration 35, Issue 5 (October 1, 2018): 541–73. http://dx.doi.org/10.54648/joia2018029.
Повний текст джерелаАнотація:
This article is published in two parts and discusses the concept and practice of free zone arbitration in the United Arab Emirates (UAE). More specifically, the article seeks to highlight the status quo of arbitration in the Dubai International Financial Centre (DIFC) and the Abu Dhabi Global Market (ADGM), both of which may serve as an offshore seat of arbitration in their own right. Both the DIFC and the ADGM offer a common law alternative to arbitration in onshore UAE. Part I of the article focuses on arbitration in the DIFC. It provides an introduction to the judicial and legislative framework of the DIFC, including in particular the main provisions and the operation of the DIFC Arbitration Law, the institutional framework of arbitration in the DIFC, the curial function of the DIFC Courts in DIFC-seated arbitrations, and the recognition and enforcement of domestic DIFC and foreign arbitral awards in the DIFC. Part I also discusses the DIFC Courts’ status as a conduit jurisdiction facilitating the recognition and enforcement of non-DIFC awards for onward execution in onshore Dubai and beyond.
22
Croft, Clyde. "Recent Developments in Arbitration in Australia." Journal of International Arbitration 28, Issue 6 (December 1, 2011): 599–616. http://dx.doi.org/10.54648/joia2011046.
Повний текст джерелаАнотація:
Australia has recently modernized its international and domestic commercial arbitration law to reflect (with some amendments) the 2006 version of the UNCITRAL Model Law on International Commercial Arbitration. As well as legislative reform, Australia has taken practical steps such as providing new dispute resolution facilities and specialist court arbitration lists to enhance Australia as an arbitral seat. Recent judgments by Australian courts have been supportive of international arbitration and have indicated a willingness to apply the international jurisprudence relating to the Model Law and the New York Convention. These improvements have increased Australia's attractiveness as an arbitral seat.
23
Clutterham, Claire, and Mark Padley. "Common Pitfalls of Arbitration in the United Arab Emirates: Interference and Enforcement." Journal of International Arbitration 33, Issue 1 (February 1, 2016): 83–98. http://dx.doi.org/10.54648/joia2016003.
Повний текст джерелаАнотація:
Since the United Arab Emirates (‘UAE’) ratified the NewYork Convention in July 2006, the popularity of arbitration has soared in the UAE. The local UAE courts have enforced a number of arbitral awards under the Convention and the Dubai International Financial Centre (DIFC) Court now offers an alternative seat and route for the recognition and enforcement of arbitral awards pursuant to an UNCITRAL Model Law-based arbitration law. Yet there remain a number of recurrent pitfalls commonly encountered by parties attempting to enforce arbitration agreements, conduct effective arbitrations and enforce foreign and domestic arbitral awards in the UAE. Parties may be caught out by issues such as capacity, the breadth of disputes considered non-arbitrable by the local courts, and alleged deficiencies in the conduct of the arbitration and the award itself. These pitfalls result from quirks of UAE law and the fact that there is still no dedicated arbitration law applicable to all of the UAE.
24
Aglionby, Andrew. "Arbitration Outside China: the Alternatives." Journal of International Arbitration 24, Issue 6 (December 1, 2007): 673–88. http://dx.doi.org/10.54648/joia2007049.
Повний текст джерелаАнотація:
When the parties to a contract connected with business in China decide to arbitrate, they sometimes select a seat of arbitration outside the People’s Republic of China. There are many factors to such a choice including the convenience of the location, the likely nationality of the arbitrators, the procedures which are likely to be adopted and the enforceability of the resulting award both in China and elsewhere. This article discusses some of those factors and how they might be applied in selecting a seat for arbitration in the arbitration agreement.
25
Bantekas, Ilias. "The Proper Law of the Arbitration Clause: A Challenge to the Prevailing Orthodoxy." Journal of International Arbitration 27, Issue 1 (February 1, 2010): 1–8. http://dx.doi.org/10.54648/joia2010002.
Повний текст джерелаАнотація:
It has recently been established, at least before English courts, that where the parties have failed to set out the proper law of the arbitration clause, this is necessarily, and by mandatory default, the law of the seat of the arbitration. The justification for this assumption is that if this were not so, then the parties may have access to two distinct curial laws. This assumption in favor of the law of the seat, however, goes against the ordinary assumption that in the absence of a contrary provision by the parties, the law applicable to the arbitration clause will follow the proper law of the contract. Moreover, the justification offered by the courts is pointless in circumstances where the parties in fact designate the law governing the arbitration clause which is contrary to the law of the seat. Ultimately, it is up to the arbitrators and the courts of the lex arbitri to decide on any conflicts of civil procedure law that may arise.
26
Koepp, Johannes, and 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 (June 1, 2021): 377–94. http://dx.doi.org/10.54648/joia2021019.
Повний текст джерелаАнотація:
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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Birgonul, M. Talat, Irem Dikmen, and Sinasi Bektas. "Comparison of an Emerging Seat of Arbitration and Leading Arbitration Seats and Recommendations for Reform." Journal of Legal Affairs and Dispute Resolution in Engineering and Construction 10, no. 1 (February 2018): 04517023. http://dx.doi.org/10.1061/(asce)la.1943-4170.0000250.
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Baltag, Crina. "Article V(1)(e) of the New York Convention: To Enforce orNot to Enforce Set Aside Arbitral Awards?" Journal of International Arbitration 39, Issue 3 (June 1, 2022): 397–410. http://dx.doi.org/10.54648/joia2022018.
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The recognition and enforcement of arbitral awards which are set aside at the seat continues to be a ‘hot’ topic, triggered by the increasing number of cases in which the prevailing party in the arbitration attempts to enforce such award in various jurisdictions where the assets of the award debtor are located. Such jurisdictions may have different approaches to the application of Article V(1)(e) of theNew York Convention providing for the possibility that courts refuse recognition and enforcement of arbitral awards already set aside. Kluwer Research confirms, that, first, this ground under Article V(1)(e), while the most successfully argued ground under Article V of the New York Convention, is only upheld in 34% of the cases, and that, second, there are diverse approaches of the national courts in assessing such ground, ranging from deference to the courts of the seat of arbitration, to a truly delocalized, transnational approach to the recognition and enforcement of awards. set aside, recognition and enforcement of arbitral awards, arbitral awards, local standard annulment, international standard annulment, annulment, seat of arbitration, arbitration
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Thadikkaran, Manu. "Judicial Intervention in International Commercial Arbitration: Implications and Recent Developments from the Indian Perspective." Journal of International Arbitration 29, Issue 6 (January 21, 2012): 681–90. http://dx.doi.org/10.54648/joia2012042.
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The rules of arbitration ensure party autonomy, especially in international commercial transactions. However, the efficiency of the technique would be hampered if concurrent authority is conferred on the judiciary over arbitral proceedings. The scenario in India is notable in this aspect. The attitude of scepticism reflected in India, a developing country, towards an alternate dispute settlement mechanism such as arbitration may be attributed to its inexperience as well as its history. In India, the exercise of concurrent authority by the judiciary is evident from the judgments of Bhatia International and Venture Global. The law laid down by the Supreme Court in these judgments interprets the Arbitration and Conciliation Act in a manner contrary to the spirit of the UNCITRAL Model Law, and has received wide criticism from the global business community. Subsequently, however, as a means of damage control, the Indian judiciary interpreted arbitration agreements giving importance to the seat of arbitration to prevent judicial intervention. The 'seat theory', which is internationally accepted in the arena of arbitration, giving the judiciary of the place of the seat of arbitration the authority to intervene and set aside arbitral awards, was accepted and adopted by the Indian legal system indirectly. However, the question remains as to the effectiveness of this attempt by the Indian judiciary in containing the effects of this position of law on the Indian economy. However, the reasoning of the Bhatia judgment was justified in its circumstances. Matters regarding interim measures and collection of evidence can be enforced effectively by the judiciary of the place of the subject matter of arbitration. With regard to these limited aspects, all judiciaries must be granted the authority over arbitral proceedings to ensure efficient enforcement of awards. Hence, necessary legislative amendments, along with support from the judiciary, are essential for India to adopt a pro-arbitration regime.
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Simões, Fernando Dias. "Macau: A Seat for Sino-Lusophone Commercial Arbitration." Journal of International Arbitration 29, Issue 4 (August 1, 2012): 375–89. http://dx.doi.org/10.54648/joia2012025.
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One of the most meaningful paths of China's economic and diplomatic 'charm offensive' is the promotion of high-level contacts with the Portuguese-speaking countries. China is well aware of the potentials which derive from the use of the Portuguese language as a means of strategic projection. Macau plays an unmatched role in the promotion of economic and trade cooperation between China and the 'Lusophone World'. In 2010, during the third Ministerial Conference of the 'Forum for Economic and Trade Cooperation between China and Portuguese-Speaking Countries', the Ministers agreed to analyse the comparative advantages of Macau in the knowledge of Chinese and Portuguese-speaking legal systems, promoting Macau as one of the venues for arbitration regarding eventual disputes concerning trade between Chinese and Portuguese-speaking entrepreneurs. In this article we discuss the comparative advantages and weaknesses of Macau as a seat for commercial arbitration between entrepreneurs from China and Portuguese-speaking countries. To assert itself as a reliable seat for international arbitration between two such different worlds, Macau needs to adopt a more proactive approach towards arbitration, inter alia by improving its statutory regime and enhancing its pool of experienced legal professionals and translators with the proper language skills and cultural awareness.
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Astakhova, Daria O. "THE ROLE OF THE DELOCALISATION THEORY IN THE DEVELOPMENT OF THE FRENCH LEGISLATION ON INTERNATIONAL COMMERCIAL ARBITRATION." Vestnik Tomskogo gosudarstvennogo universiteta. Pravo, no. 40 (2021): 125–32. http://dx.doi.org/10.17223/22253513/40/11.
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The notion of delocalisation of international commercial arbitration has recently drawn increasing attention from Russian and foreign scholars. The main problematic of scientific discussions relates to the question of how closely international commercial arbitration is related to the legal order of the seat of arbitration. The emergence and development of the theory of delocalisation of international commer-cial arbitration is inextricably linked to the French legal science. French scientists stand at the origins of this theory. Besides, French law and jurisprudence have been significantly influenced by the theory of delocalisation of international commercial arbitration. The following provi-sions of the French legislation provide the most significant examples. First, article 1511 of the French code of civil procedure constitutes a basis for the use by arbitrators of the method of direct choice of law (“voie directe”). This implies that arbitrators do not have to apply any conflict of laws rules. Therefore, French law provides for a broad autonomy of arbitrators in the choice of law, while at the same time reducing the link between arbitration and national law, including the French law. French law is thus in perfect harmony with the concept of delocalisation of international commercial arbitration. Second, it is worth mentioning that the French code of civil procedure contains a limited number of grounds for refusal of recognition and enforcement of foreign arbitral awards. This particularity permits to ensure the highest efficiency of international commercial arbitration, to maintain an arbitration friendly approach at the stage of recognition and enforcement of foreign arbitral awards, as well as to recognise and enforce arbitral awards that have been set aside at the seat of arbitration. This corresponds to the idea of delocalisation of international commercial arbitration. Third, the influence of the delocalisation theory on the French legislation is also reflected in the scope of international competence of the French supporting judge, who can act in cases where one of the parties incurs the risk of denial of justice. This means that the French sup-porting judge is entitled, for example, to nominate an arbitrator if one of the parties fails to do so, even if the dispute does not have any objective links to France. The features of the French legislation on international commercial arbitration examined above prove that it is impacted by the theory of delocalisation of international commercial arbitration. The recognition in legal science, law and court practice of the autonomy of inter-national commercial arbitration from national legal orders contributes to the growth of attrac-tiveness of Paris as a place of cross-border dispute resolution.
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Heitzmann, Pierre. "The 2017 ICC Expedited Rules: From Softball to Hardball?" Journal of International Arbitration 34, Issue 2 (April 1, 2017): 121–48. http://dx.doi.org/10.54648/joia2017009.
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The 2017 Rules of Arbitration of the International Chamber of Commerce (ICC), in force since 1 March 2017, have adopted new provisions for expedited procedures with the objective of having final awards issued by sole arbitrators six months after the first case management conference. These new provisions apply whenever the value of the claims in question is under USD 2 million. Users of ICC arbitration can opt in to or opt out of the expedited procedures provisions (EPP), partially or totally, regardless of the amount in dispute. The decision to institutionalize expedited procedures is an implicit admission that the objectives of the 2012 Rules have not been met when it comes to improving the time- and cost-efficiency of ICC arbitrations. The new provisions offer users dissatisfied with increased time and costs of arbitration an alternative to expedite the resolution of their disputes under the ICC Rules. While this offer is not novel in the landscape of international arbitration, it is to be welcomed, although it entails new challenges for users, arbitrators, as well as the ICC Court and its Secretariat. In practice, expedited procedures may increase due process challenges by dissatisfied litigants, before and after awards are issued. For these reasons, more than before, selecting a pro-arbitration seat will be important.
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Yang, Fan. "APPLICABLE LAWS TO ARBITRATION AGREEMENTS UNDER CURRENT ARBITRATION LAW AND PRACTICE IN MAINLAND CHINA." International and Comparative Law Quarterly 63, no. 3 (July 2014): 741–54. http://dx.doi.org/10.1017/s0020589314000207.
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AbstractThis article examines the recent development of mainland Chinese law and judicial practice regarding the law applicable to arbitration agreements. It identifies potential changes to mainland Chinese law and practice that may help to further develop the People's Republic of China (PRC) into a truly international-arbitration-friendly jurisdiction. It argues that in the absence of explicit statutory provisions and a consistent approach in the People's Courts to the determination of the place of arbitration and the law applicable to arbitration agreements, it is important for parties negotiating arbitration clauses with a seat in China and/or for contracts involving mainland Chinese elements to explicitly designate the place of arbitration as well as the law governing their arbitration agreements.
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Clifford, Philip, and Eleanor Scogings. "Which law determines the confidentiality of commercial arbitration?" Arbitration International 35, no. 4 (December 1, 2019): 391–99. http://dx.doi.org/10.1093/arbint/aiz025.
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Abstract Commercial arbitration taking place in England is commonly believed to be confidential, and this is often presented as an advantage over court litigation (which is generally not confidential). However, absent express provision, the precise extent of any confidentiality is a mystery to many and its legal basis, beyond being an implication as a matter of English law, remains unclear. In particular, what is the trigger for the implication: the venue for the arbitration, the seat of the arbitration or the law governing the arbitration agreement? This article addresses these questions.
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Abedian, Hossein. "Judicial Review of Arbitral Awards in International Arbitration A Case for an Efficient System of Judicial Review." Journal of International Arbitration 28, Issue 6 (December 1, 2011): 553–90. http://dx.doi.org/10.54648/joia2011044.
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To strike a balance between the two important considerations of finality and fairness, a degree of judicial scrutiny of arbitral awards seems to be necessary. However, excessive judicial intervention and exercise of extraterritorial jurisdiction over arbitral process and actions for annulment of arbitral awards may undermine international arbitration as a viable and effective alternative dispute settlement mechanism. This article argues that an efficient and harmonized regime of judicial review which could exclusively be exercised by the competent courts at the seat of arbitration will streamline and expedite the enforcement process and thereby increase the efficiency and reliability of international arbitration. Increased international efforts aimed at harmonizing the law and practice with respect to the scope of judicial review and the exclusivity of jurisdiction of the courts of the seat will pave the way for such a harmonized regime of international arbitration which may, in turn, obviate any need for ignoring, through the much criticized practice of enforcement of annulled awards, a judicial decision lawfully rendered to set an arbitral award aside.
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Wei, Amy Wen, Milo Molfa, Adam Grant, and Paul Kleist. "Challenges in the Taking of Evidence in Arbitrations Seated in Mainland China." Journal of International Arbitration 36, Issue 3 (June 1, 2019): 315–36. http://dx.doi.org/10.54648/joia2019015.
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Arbitration is often hampered by obstacles to the taking of evidence, either because one party fails to produce relevant documents when requested or the documents are held by a third party outside the tribunal’s powers. Parties engaged in arbitration seated in Mainland China are constrained by the Chinese state court’s limited powers to assist in evidence taking. This article considers the wider scope of options for the taking of evidence in arbitrations seated in Mainland China. The first port of call may be to seek an order from the arbitral tribunal to impose sanctions within the arbitration, such as adverse inferences or adverse cost orders. If the arbitral tribunal cannot compel the recalcitrant party or a third party to produce documents or other evidence, the party may seek assistance from the court at the arbitral seat or a foreign court connected to the arbitration. This article compares the options for state court assistance in evidence taking available in the state courts of Mainland China, England and Wales, Hong Kong, and the United States. Practitioners should be aware that the powers of state courts to assist in evidence taking in international arbitration varies widely between these jurisdictions, from allowing only orders for preservation of key evidence in Mainland China to wide-ranging discovery from third parties by way of Section 1782 applications in the Unitead States.
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Phua, Myron, and Matthew Chan. "The distinctive status of international arbitration agreements in English private international law?" Arbitration International 36, no. 3 (July 28, 2020): 419–27. http://dx.doi.org/10.1093/arbint/aiaa026.
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Abstract This Case Note critically discusses the Court of Appeal’s recent decision in Enka v Chubb [2020] EWCA Civ 574, where it held that (i) the doctrine of forum non conveniens (FNC) can never apply where an English court is asked to determine if a London arbitration agreement should be enforced by injunction, and that (ii) the ‘separability’ of an arbitration clause from the contract containing it entailed that, absent an express choice of law for it, there was a ‘strong presumption’ that the parties implicitly chose the seat law as its proper law. In doing so, the Court abandoned its previous approach in Sulamérica v Enesa, and indirectly cast doubt on its recent suggestion in Kabab-ji v KFG that ‘implied choices’ of law arguably involved the implication of a term into the arbitration agreement on ‘business efficacy’ grounds. Further, the Court appeared not to acknowledge that, outwith the arbitration context, (i) ‘FNC waiver’ clauses and exclusive jurisdiction agreements do not categorically foreclose FNC, and that (ii) ‘implied choices’ of law should not be casually inferred nowadays. The Court’s analysis in Enka was distinctly arbitration-centric: it was minded to emphasize the non-derogability of the seat courts’ supervisory role, and the ‘separability’ of an arbitration agreement from the contractual document containing it. Enka is an intriguing example of how international arbitration doctrine, particularly as regards arbitration agreements, can materially diverge from cognate principles of private international law. Nevertheless, we question whether international arbitration agreements are truly distinctive enough to justify such differences in treatment. Our assessment is that the answer is probably ‘no’.
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Belohlávek, Alexander J. "Importance of the Seat of Arbitration in International Arbitration: Delocalization and Denationalization of Arbitration as an Outdated Myth." ASA Bulletin 31, Issue 2 (June 1, 2013): 262–92. http://dx.doi.org/10.54648/asab2013030.
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The seat of arbitration seems to be one of the most important issues to be agreed within an arbitration agreement. It directly influences a number of issues: arbitrability, determination of the governing law, whether substantive or procedural, and determination of the place for the proceedings on annulment of the arbitral award (and for the exercise of the juge d´appui and supervisory functions of courts with respect to arbitration). The examples of many countries clearly illustrate that the ideas of the denationalization of arbitration are somewhat chimerical, especially because the states desire to preserve a certain degree of control over arbitration; it also demonstrates the fact that the denationalization of arbitration generally does not even correspond to the actual interest of the parties. The reason often inheres in the greater security guaranteed in localized proceedings. Consequently, the denationalization of arbitration has never been fully implemented, and it appears that it has become a very marginal issue.
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Blanke, Gordon. "Recourse Against Non-ICSID Investment Arbitration Awards in the MENA Region." BCDR International Arbitration Review 3, Issue 2 (December 1, 2016): 361–69. http://dx.doi.org/10.54648/bcdr2016033.
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Non-ICSID investment arbitration awards can be challenged either in the courts of primary jurisdiction at the seat of the arbitration or, when opposing an application for enforcement, in the courts of secondary jurisdiction at the place of enforcement. Either way, it will be the degree of arbitration-friendliness of the national court that determines whether or not a challenge to set aside or refuse enforcement of the award will succeed. Although MENA courts are more arbitration-friendly than is commonly thought, there remains some uncertainty over how reliable they are in enforcing (investment) arbitration awards against state entities. There is little (if any) practical guidance to date. Investors are therefore advised to tread carefully before committing to arbitration in a MENA jurisdiction or seeking enforcement of a non-ICSID award there.
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Kovacs, Robert B. "Challenges to International Arbitral Awards The French Approach." Journal of International Arbitration 25, Issue 4 (August 1, 2008): 421–32. http://dx.doi.org/10.54648/joia2008031.
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A dissatisfied party to an international arbitral process or decision may challenge such matters in the domestic courts of the country where the arbitration was held (the seat of arbitration) or where the award will be enforced.The approach taken by different countries to these challenges varies considerably. This article examines the approach taken under French law and procedure to challenges to international arbitral awards. This article considers the sources of French international arbitration law, when and how arbitral awards can be challenged under French law, and the grounds for challenges of arbitral awards under French law.
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Peretti, Luiz Alberto Salton. "Caso Jirau: Decisões na Inglaterra e no Brasil Ressaltam Métodos e Reações Distintas na Determinação da Lei Aplicável à Convenção de Arbitragem." Revista Brasileira de Arbitragem 10, Issue 37 (March 1, 2013): 29–49. http://dx.doi.org/10.54648/rba0130002.
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ABSTRACT: In 2012, Brazilian and English courts examined the validity of an arbitration agreement executed in Brazil. The decisions rendered demonstrate different approaches as to the law that governs the arbitration agreement. In Brazil, this law was associated with the law governing the main contract, which was Brazilian law. In England, the decisions were based on the doctrine of the separability of the arbitration agreement differentiating it from the underlying contract and determined that the law most closely connected to the arbitration agreement was that of the arbitration seat, which was English law. Injunctions were sought in both jurisdictions in view of the lawsuits filed before the Brazilian and English courts. While Brazilian courts ordered the discontinuation of the arbitration in London, English courts enjoined the parties to abstain from pursuing court litigation in Brazil, reminding the difficulties that such orders create to the conduct of international arbitration, both from the standpoint of the arbitrators' prerrogatives and as regards to international law.
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Pazdan, Jadwiga. "UMOCOWANIE DO ZAWARCIA UMOWY O ARBITRAŻ." Zeszyty Prawnicze 3, no. 2 (May 10, 2017): 299. http://dx.doi.org/10.21697/zp.2003.3.2.13.
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Power to Conclude an Arbitration Agreement on Behalf of Another PersonSummaryThe legal character of an arbitration agreement is disputable in the Polish doctrine. However, it is undisputable that such an agreement may be concluded by an agent. I mean here a power of attorney of the substantive law, and not the power to represent in the court proceedings.A principal may expressly authorize an agent to conclude a particular arbitration agreement (a specific power of attorney) or to conclude all arbitration agreements (a generic power of attorney).A question, however, arises, whether an agent authorized to enter into a specific civil or commercial law contract or contracts of specific kind who was not expressly authorized by a principal to conclude an arbitration agreement may conclude such agreement in relation to the disputes which may result from these contracts. This question should be answered positively.An agent who was given only a general authorization to act on behalf of the principal, cannot in principle conclude an arbitration agreement, unless the dispute concerns the sphere in which an agent has a power to act. This sphere is confined to acts within a regular management.One should look for a law applicable to the power of attorney to conclude an arbitration agreement according to the method accepted generally in private international law for authorization, and not according to the rule applied in relation to a power to represent in the court proceedings.The Polish 1965 Private International Law Act does not determine the law applicable to the authorization. This gap should be filled using the following solution:a) the choice of law made by a principal (or by a principal and an agent) is effective against the third party , if this party knew about the choice or could and ought to have known about it,b ) in case of the lack of choice, the law of the country in which an agent permanently conducts his professional activity related to the authorization should be applied (the law of agent’s seat), if the third party with whom an agent concluded an agreement knew the agent’s seat or could, with due diligence, identify it,c ) in case of the lack of choice and when an agent has no permanent seat, one should apply the law where an agent acts.
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Moloo, Rahim. "Arbitrators Granting Antisuit Orders: When Should They and on What Authority?" Journal of International Arbitration 26, Issue 5 (October 1, 2009): 675–700. http://dx.doi.org/10.54648/joia2009036.
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Parallel proceedings are common even when an arbitral agreement mandates that all disputes be resolved in one forum. When a party to an arbitration agreement wishes to prevent the other from pursuing a parallel proceeding it may seek an antisuit remedy, either from the court at the seat of arbitration or from the arbitral tribunal. This article considers when and on what authority an arbitral tribunal should grant an antisuit order. This article argues that an exclusive arbitration agreement, requiring the parties to resolve their disputes through arbitration to the exclusion of any other forum, gives arbitrators the authority to grant an antisuit order to remedy a breach of the arbitration agreement itself. It is also argued that an award of damages covering the costs of the parallel litigation may be an appropriate supplementary remedy for the breach of an arbitration agreement, or an appropriate remedy for the breach of an antisuit order already granted.
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Carmona, Carlos Alberto. "Arbitragem e administração pública primeiras reflexões sobre a arbitragem envolvendo a administração pública." Revista Brasileira de Arbitragem 13, Issue 51 (September 1, 2016): 7–21. http://dx.doi.org/10.54648/rba2016031.
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ABSTRACT: The article approaches the main issues arisen from the legislative confirmation concerning the possibility of Public Administration being a party to arbitration proceedings (Law 14.129, May 2015). The discussion of such issues is important in view of the need for the Brazilian Public Administration to adapt to arbitration (and not the opposite) so that the country remains competitive, particularly in the context of public-private partnerships. Thus, this article addresses the issues concerning the choice of the arbitral institution, the appointment of arbitrators, the payment of costs and expenses, attorney fees, seat and language of the arbitral proceedings, as well as the degree of publicity of the arbitration.
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van Haersolte-Van Hof, Jacomijn J. "Revision of the Dutch Arbitration Act: Making the Netherlands an Even Better Place for Arbitration." Journal of International Arbitration 31, Issue 3 (June 1, 2014): 425–37. http://dx.doi.org/10.54648/joia2014018.
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When the Netherlands substantially revised and modernized its arbitration law in 1986 it was one of the first countries to do so, soon to be followed by many other major arbitration jurisdictions. Although the current law functions well, it is considered time for an update. In 1986, it was decided not to implement the UNCITRAL Model Law. In proposing the current revision, the law is brought in line more closely with some of the Model Law's provisions. In addition, several changes have been made to modernize the law and to increase the efficiency of the arbitral process. The amended law will enhance the attractiveness of the Netherlands as a seat for international arbitration.
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Teh, Stephanie, and João Ribeiro. "The Time for a New Arbitration Law in China: Comparing the Arbitration Law in China with the UNCITRAL Model Law." Journal of International Arbitration 34, Issue 3 (July 1, 2017): 459–87. http://dx.doi.org/10.54648/joia2017023.
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As China consolidates its position as one of the most important trade players in the international market, arbitration has become an attractive alternative to litigation in commercial disputes between Chinese companies and their foreign trade partners. The UNCITRAL Model Law on International Commercial Arbitration 1985, with amendments as adopted in 2006, represents the accepted international legislative standard for a modern arbitration law. In order to make China an attractive seat for international commercial arbitration and enhance the efficiency of the arbitration system for the benefit of commercial parties, whether Chinese or foreign, it is important for China to consider adopting the UNCITRAL Model Law. This article provides an overview of the UNCITRAL Model Law and its positive impact on the development of arbitration in several jurisdictions worldwide. Next, the benefits of legal reform are highlighted through a contrast between China’s current Arbitration Law and the UNCITRAL Model Law. Finally, this article lays out a procedural roadmap through which China’s legal framework may be amended to incorporate the UNCITRAL Model Law.
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Heilbron QC, Hilary. "The English Courts Approach to Review of Awards by Way of Challenge and Enforcement." BCDR International Arbitration Review 2, Issue 1 (June 1, 2015): 153–70. http://dx.doi.org/10.54648/bcdr2015009.
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The article discusses the procedure for challenging and enforcing arbitral awards in the English courts, both where the seat is London and also under the New York Convention. It includes sections on jurisdictional issues, procedural issues and points of law. It addresses the tension that can arise in the context of the competing jurisdictions between the courts of the seat of the arbitration and the enforcing courts and debates issues of the finality and binding nature of arbitral awards in the above context.
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Hovaguimian, Philippe. "The Res Judicata Effects of Foreign Judgments in Post-Award Proceedings: To Bind or Not to Bind?" Journal of International Arbitration 34, Issue 1 (February 1, 2017): 79–106. http://dx.doi.org/10.54648/joia2017005.
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This comparative analysis explores the question of preclusive effects arising from arbitration related judgments, particularly when a foreign court has already ruled upon an issue relevant to the grounds for refusal under Article V of the 1958 New York Convention. It argues that arbitration-related judgments like exequatur or non-annulment decisions, along with the res judicata and estoppel effects arising from them, can be subject to recognition in other countries. The article thereby rejects some of the views contending that various legal obstacles stand in the way of such recognition, including its compatibility with the 1958 New York Convention. However, risks of forum shopping and undue imbalances in the parties’ rights ultimately support restricting this recognition to judgments rendered at the arbitral seat only. Such judgments should be able to preclude the re-litigation of identical issues in non-seat countries as a matter of res judicata and estoppel.
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Andrews, Neil. "Courts Ensuring Compliance with Arbitration Clauses: The Position in English Law." European Business Law Review 25, Issue 4 (August 1, 2014): 587–604. http://dx.doi.org/10.54648/eulr2014027.
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Five forms of protection are examined here. Besides (1) stays of judicial proceedings, the English courts can issue (2) an injunction to stop a party acting inconsistently with an arbitration agreement (English anti-suit relief remains available where the court proceedings occur outside the European Union. (3) The decision to grant the injunction also creates an issue estoppel on the effects of the arbitration agreement. That estoppel binds an arbitral tribunal with a seat in England. (4) Declarations and (5) damages are further forms of relief.
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Selim, Ismail. "Egyptian Public Policy as a Ground for Annulment and Refusal of Enforcement of Arbitral Awards." BCDR International Arbitration Review 3, Issue 1 (September 1, 2016): 65–79. http://dx.doi.org/10.54648/bcdr2016006.
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In contrast with the French approach, the Egyptian Arbitration Law does not explicitly embrace the dichotomy between domestic and international public policy. Yet Egyptian courts have adopted the well-known distinction between domestic and international public policy with respect to conflict of laws, including, mutatis mutandis, recognition and enforcement of foreign judgments and foreign and international arbitral awards. The weak standard of review by Egyptian courts of whether an arbitration award complies with public policy norms is one of the reasons why Egypt has become an arbitration-friendly seat. A comprehensive review of Egyptian case law illustrates the rejection by the courts in Egypt of the public policy exception, save in very exceptional circumstances.