International Arbitrators as System-Builders

Purpose: the article examines the main problems associated with the extension of arbitration of domestic and international financial disputes in Singapore. The characteristics of the development of international commercial arbitration in Singapore, including the role of the Singapore International Arbitration Center SIAC, examined the new SIAC Arbitration Rules - the Arbitration Rules of 2016 and the Investment Arbitration Rules of 2017, as well as the Arbitration Regulations of the Singapore Exchange 2006 and the Arbitration Rules Singapore Exchange on the Derivatives Trade 2005. In order to achieve this goal, the article must solve the following tasks: to determine whether there are institutions providing services in Singapore and on the arbitration of financial disputes; to study the main problems of transferring a cross-border financial dispute to international arbitration; to study the practice of international arbitration on this issue. Methods: this article is based on an interdisciplinary concept of research, which allowed to distinguish the distinctive features of the legal regulation of the settlement of financial disputes in Singapore. Results: the provisions of the Arbitration Rules of 2016 and the Investment Arbitration Rules of 2017 are innovative not only for the SIAC Center, but for all international commercial arbitration as a whole. The new regulations of the SIAC Center enshrined provisions for the consolidation of arbitral proceedings in disputes from two or more treaties; on attracting additional parties; the refusal of claims or objections at an early stage if the claim or objection is manifestly unfounded from a legal point of view or the claim / objection is obviously beyond the jurisdiction of the Arbitration Tribunal; on delocalization of the place of arbitration; additions to the provisions on extraordinary arbitration and the procedure for accelerated production. The new Arbitration Rules came into force on January 1, 2016 and proved itself from the very best side. The statistics of the SIAC Center for 2016 were unprecedented. Conclusions and Relevance: the materials presented in the article show the special role of arbitration in resolving domestic and international financial disputes. The practical application of its results will improve the Russian legislation in the field of resolving financial disputes.

This article is dedicated to the study and disclosure of the legal essence of international commercial arbitration as a legal phenomenon representing an alternative method of resolving international commercial disputes. It highlights the growing popularity of arbitration among participants in foreign economic relations and the expanding jurisdictional scope of arbitration. Various approaches to defining the essence of this legal phenomenon have been explored, and three main aspects of it have been identified: (1) as a permanent or ad hoc arbitral body tasked with resolving international commercial disputes; (2) as a procedure (mechanism, process) for dispute resolution in accordance with arbitration rules established by the arbitral tribunal or agreed upon by the parties; and (3) as a specific panel of arbitrators who resolve a particular dispute, appointed or selected according to the procedure agreed upon by the parties, authorized to resolve the dispute on the merits and render an arbitral award. The article explores concepts related to international commercial arbitration, such as «arbitration», «commercial», and «international arbitration». It clarifies the conceptual correlation between international commercial arbitration and arbitral tribunals, as well as the term «international arbitration,» which should be distinguished from one another. The article identifies terminological discrepancies in the definitions of «arbitration», «arbitral tribunal», «arbitral institution» and «arbitration court» in Ukrainian national legislation compared to equivalent terms in international law, such as «arbitration», «arbitral tribunal» and «arbitral institution». Additionally, the subject matter and parties involved in legal relations that may be referred to arbitration are analyzed. The essential characteristics of arbitration are outlined, and a new definition of international commercial arbitration is proposed, considering both the approach of current Ukrainian legislation and the requirements of international law. The advantages of arbitration as an alternative dispute resolution method compared to litigation in national courts are highlighted. These advantages include the flexibility of available arbitration types and institutions, the possibility of appointing a competent arbitrator who may be a specialized expert in a particular field without necessarily being a lawyer, the confidentiality of arbitration proceedings, the speed and efficiency of dispute resolution, the finality and binding nature of arbitral awards, and the extraterritorial enforceability of such awards. The article also addresses challenges in the regulation and practical application of arbitration.

In the last decades, transparency has become a fundamental principle in international adjudication. It is usually defined as including concepts such as public access and disclosure of documents or information. Due to the high impact of the activities of international institutions on civil societies and the growing relevance of individuals as subjects of the International Community, it became evident that there was a need to: 1. make the decision-making processes of international organisations more transparent; 2. increase the accountability of the international institutions towards civil societies; 3. give access to the public to international dispute settlement mechanisms. For the purpose of this article, the third aspect, ie access to the public to international dispute settlement mechanisms, will considered. In particular, even though reference will be made to other international dispute settlement systems, the practice of international investment and commercial arbitral tribunals will be dealt with. The article will then study the role of transparency in international arbitration, highlighting three main challenges. First, the author will consider the difficult relation between transparency and confidentiality in arbitral proceedings. As this issue is extremely delicate in international commercial arbitration, this practice will be the focus of this section of the article. Second, transparency as a tool to reach a higher level of consistency in international arbitration will be discussed. This is a highly topical issue in international arbitration, as shown by the United Nations Commission on International Trade Law (UNCITRAL) negotiations that led to the adoption in 2014 of the Rules on Transparency in Treatybased Investor-State Arbitration. As a matter of fact, UNCITRAL looked into the issue of amicus curiae briefs provided by the investor’s home State on issue of treaty interpretation, to secure more consistent and harmonised interpretations of standards in investment arbitration. The author will explore whether consistency through transparency is desirable in international arbitration. Third, the paper will deal with the growing tendency to codify standards in international arbitration. This phenomenon is well illustrated by the current negotiations on investment and trade treaties such as the EU-US Transatlantic Trade and Investment Partnership (TTIP) and the EU-Canada Comprehensive Economic and Trade Agreement (CETA) that provide for specific provisions on transparency relating to investor-to-State disputes. The necessity and effectiveness of this codification will be investigated.

The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards forms the foundation of the modern system of international commercial arbitration. However, it contains no dispute resolution procedure of its own that a wronged party might use to enforce its rights under an arbitration agreement or award. It is generally left to State parties, and particularly domestic courts, to interpret and apply the Convention's provisions competently and in good faith. This can give rise to politicisation and frustration for contractual parties in the pursuit of their international arbitration rights. A series of recent decisions – by investment arbitration tribunals and regional human rights courts – suggests that public international law has a substantial role to play in the protection of international commercial arbitration rights against interference by States and, in particular, their domestic courts. Those decisions demonstrate that international courts and tribunals are increasingly stepping in to ensure the recognition and enforcement of commercial arbitration rights. In doing so, those international courts and tribunals are resorting to principles and remedies that are well-established under public international law. This article analyses and compares a number of recent judgments and awards addressing the relationship between public international law and international commercial arbitration. It examines the approaches taken by some notable recent investment arbitration awards to the protection of commercial arbitration rights under investment treaties. The article also examines the expandingjurisprudence of the European Court of Human Rights in connection with the recognition and enforcement of commercial arbitration awards. The article concludes by observing that the recent jurisprudence demonstrates a growing symbiotic relationship between public international law and international commercial arbitration rights.

IN ICSID Case No. ARB/05/7, Saipem v. Bangladesh , decision on the merits dated 30 June 2009, the tribunal (composed of Gabrielle Kaufmann Kohler, President, Christoph Schreuer and Sir Phill Otton) held Bangladesh liable under a bilateral investment treaty for unlawfully expropriating Saipem’s right to ICC arbitration through the interference of Bangladesh’s courts. The tribunal also found that Bangladesh violated the New York Convention and committed an abuse of rights under general principles of international law. The tribunal awarded Saipem the amount that the ICC tribunal had awarded, with simple interest. It refused to award Saipem legal costs. The Saipem award provides a rich platform for discussion of several contentious issues currently brewing in the international investment arbitration community. One of those issues is the line tribunals are drawing between contract rights and treaty rights. The question of whether purely contract-based, commercial arbitration claims are being ‘dressed up’ as investment treaty claims was the subject of discussion at the American Society of International Law Annual Meeting in 2009 at the roundtable panel on ‘Mapping the Future of Investment Treaty Arbitration’. The panel discussed, inter alia , the differences between international commercial arbitration and international investment treaty arbitration. One of the panelists warned that arbitrators must be wary of wearing a commercial arbitration ‘hat’ when determining distinct issues of international law and state responsibility under investment treaties.1 The Saipem award, without entering into a discussion of where a line should or should not be drawn between commercial and international investment treaty arbitration, nevertheless sheds some important light on the debate. The Saipem award focuses on the point at which a state’s behaviour during an international commercial arbitration dispute governed by the ICC Rules triggers new obligations under an investment treaty, the ICSID Convention, the New York Convention and under general …

India embraced the modern international arbitration regime towards the end of last century by reforming its arbitration law, mainly to attract foreign investment. However, the practice shows that Indian courts have been unfavourable to international commercial arbitration in contrast to the standards of international arbitration law. Against the backdrop of tremendous foreign investment commitments and a vast Bilateral Investment Treaty network by India, approach of the national judiciary towards international commercial arbitration rights of a foreign investor is highly significant. In this context, the article seeks to analyse how the investment treaty legal framework operates to make Indian courts accountable. Thus, it essentially addresses the question, whether international responsibility arising out of actions of the national courts would help disciplining the international commercial arbitration landscape in India? In response, the article claims that investment treaty arbitration regime has contributed to the reinforcement of international commercial arbitration in India. The article concludes by signalling at some of the pressing issues in the context of interplay between international investment and commercial arbitrations.

THE ADOPTION in 1985 by the United Nations Commission on International Trade Law (‘UNCITRAL’) of a model law on international commercial arbitration (the ‘Model Law’) was a seminal event in the modern history of international arbitration. It was also an event that was encouraged, and welcomed, by international arbitral institutions such as the International Chamber of Commerce (the ‘ICC’). Although the ICC took no formal part in the elaboration of the Model Law, it was closely associated with its development. Indeed, UNCITRAL's decision to commence work on the Model Law followed a consultative meeting in Paris in September 1978 with representatives of the ICC's Commission on International Arbitration as well as the Asian–African Legal Consultative Committee (the ‘AALCC’) and the International Council for Commercial Arbitration (‘ICCA’).1 The participants at that meeting, including the representatives of the ICC, were of the unanimous view2 ‘… that it would be in...

The revised and expanded second edition of Gary Born's treatise Commercial provides detailed commentary, case analyses, and practice pointers. With full annotations and footnotes for research assistance, and analyses that identify and discuss critical issues, it should be a valuable guide to the actual practice of international commercial arbitration anywhere in the world. Among other things, Commercial Arbitration, Second Edition, examines the procedural aspects of international arbitration in contemporary practice; provides excerpts of representative international arbitral awards and national court decisions; and makes abundant reference to leading institutional rules as they are brought to bear on specific fact situations. It discusses in detail all leading international practices and legal sources relating to international commercial arbitration, including the New York and Inter-American Conventions, the UNCITRAL Model Law and other national arbitration legislation, and all leading institutional arbitration rules. It also expands and updates the First Edition's authoritative treatment of international arbitration by U.S. and other national courts. Divided into three parts - international arbitration agreements, international arbitral procedures, and international arbitration awards - the treatise explores each topic in detail, dealing with both legal and practical issues under leading international and national legal regimes. Through excerpts of key court decisions and detailed analysis, it thoroughly covers the role of U.S. courts in enforcing international arbitration agreements under the Federal Arbitration Act, providing a guide to the enforceability of international arbitration awards in U.S. courts and the role of U.S. courts in granting provisional remedies, selecting arbitrators and arbitral situses, ordering discovery, and otherwise providing judicial support for the international arbitral process. Appendices reproduce commonly-used materials essential for practitioners, including the New York and Inter-American Conventions, the Geneva Convention of 1961, the UNCITRAL Model Law, the Federal Arbitration Act, the Swiss Law on Private International Law, leading institutional arbitration rules (including the ICC, AAA, LCIA, and UNCITRAL Rules), and the IBA's Supplementary Rules Governing the Presentation and Reception of Evidence in International Commercial Arbitration and Ethics for International Arbitrators.

Over the last few decades, international arbitration has emerged as the preferred mechanism for resolving high-stakes international investment disputes. Last Term the Supreme Court of the United States decided BG Group, PLC v. Republic of Argentina, the first case the Court had ever heard concerning an international arbitration award rendered pursuant to an investment treaty dispute. The bilateral investment treaty (BIT) at issue expressly required litigation in a host-country's courts prior to international arbitration, but petitioner BG Group sought arbitration directly against Argentina without first seeking recourse in the Argentine courts. The arbitral tribunal held that failure to fulfill this condition did not strip it of jurisdiction and the tribunal reached the merits, finding in favor of BG. Because the parties chose the United States as the seat of arbitration, Argentina began proceedings in the U.S. national courts to vacate the award. On March 5, 2014, the Supreme Court ruled not to vacate, relying chiefly on the premise that fulfillment of the litigation requirement in the BIT was a procedural precondition to arbitration and thus a question for an arbitrator, not a court, to decide. But what about the text of the BIT, which plainly insists on host-country litigation prior to arbitration? What about the broader criticism that the current investment treaty arbitration (ITA) regime shortchanges host-country sovereignty in order to please foreign investors? Or that host-country courts are better positioned than international arbitral tribunals to decide questions of host-country law? These concerns deserve a response if ITA is to maintain its prominence. Thus, in addition to exploring the implications of the Court's decision for ITA and international commercial arbitration, this Note proposes an improved host-country litigation requirement, arguing that countries should learn from BG Group and seek to implement or improve host-country litigation requirements in their BITs.

Over the past 15 years, a significant “transparency gap” has developed between the investment treaty arbitration and international commercial arbitration regimes. With increasing frequency in investment treaty cases, the public is provided with some form of access to documents and hearings as well as opportunities for participation through written amicus submissions; only to a very limited extent have such developments occurred within the international commercial arbitration regime. This chapter examines whether the existing transparency gap between the two regimes should be maintained. To evaluate that transparency gap, this chapter analyzes the respective regimes in light of three factors: (i) the nature of the public interest; (ii) the role of confidentiality; and (iii) the role of party autonomy. This chapter concludes that the existing transparency gap between the two regimes should — as a general matter — be maintained. Although the public interest in particular international commercial arbitration cases can be significant — most notably in cases involving State entities or statutory claims — on a systemic level the public interest in international commercial arbitration contrasts sharply with investment treaty arbitration, where cases consistently involve State entities and challenges to government measures. Equally important, two cornerstones of international commercial arbitration also support the existing transparency gap: (i) the availability of discreet and dispassionate dispute resolution, made possible by confidential proceedings, and (ii) the primacy of party autonomy. But with respect to the particular issue of public availability of arbitral awards, this chapter concludes that the existing transparency gap should be narrowed significantly, given the compelling and multifaceted nature of the public interest in that context. The public interest in obtaining access to arbitral awards exceeds — both in strength and multiplicity — the public interest in obtaining access to other documents and hearings, or in participating in disputes as amicus curiae. With respect to the future development of international law, it is the awards — not other documents, hearing transcripts, and/or amicus submissions — that hold the greatest potential for significant impact.With a view to increasing the public availability of commercial arbitration awards, this chapter proposes three alternative models for rulemaking: (i) a default rule model (which — absent party agreement to keep awards confidential — would require publication of redacted versions of awards), (ii) a modified mandatory rule model (which would track the ICSID approach of publishing, at a minimum, excerpts of the legal reasoning in each award), and (iii) a mandatory rule model (which would track recent investment treaty practice, requiring publication of awards subject to redaction of protected information).

Whether judicial and arbitral decisions are a source of law, and thus binding upon international courts and tribunals is from a theoretical perspective a relatively easy question, but nevertheless proves to be a controversial one when taking into account the practice of international courts and tribunals. Judicial decisions are explicitly mentioned in Article 38 of the Statute of the International Court of Justice (ICJ) as ‘as subsidiary means for the determination of rules of law’. While customary law, treaties and general principles, also set out in Article 38 of the Statute of the ICJ, are generally regarded as the main or formal sources of international law, doctrine and judicial decisions are categorised as subsidiary or material sources. Indeed, only customary law, treaties and general principles are a source of obligations for States, while judicial decisions, and the doctrine, cannot in themselves be considered independent sources of obligations for States. The only exception in respect of judicial decisions is the inter partes effect of a binding judicial or arbitral decision which in itself implies that the decision is a formal source of law applicable between the parties to the dispute. The principle that in and of themselves, judicial decisions are not a source or rights and obligations for states, stands in sharp contrast to the practice of many international courts and arbitral tribunals. Despite the absence of any rule on binding precedent in international law generally and in international investment law, many investment tribunals very often refer to previous investment law cases in their decisions. The question I will address here is whether outside the formal context of the states party to a dispute, a judicial or arbitral decision can be considered as a source of rights and obligations for states in the context of international investment arbitration. It is not the purpose here to be exhaustive in the sense that all cases which have cited previous decisions or which have discussed the notion and use of precedent in international arbitration will be analysed in detail. This chapter will rather focus on certain developments concerning the use of precedent in international arbitration and the cases that underscore this development. In line with the overall theme of the book, the focus will specifically lie on the question whether the use by international investment tribunals in their decisions of previous arbitral decisions can be seen as implying that these decisions amount to a source of rights and obligations for states. More specifically, I will argue that precedents are an important but subsidiary source of international investment law. The practice of arbitral tribunals to rely extensively on previous decisions is not problematic as such, and even a welcome practice since it furthers the development of the law relating to foreign investment. Crossing the line between treating precedents as a material or subsidiary source and as a formal source, when tribunals for example rely on precedents without other argumentation or when tribunals consider it necessary to follow a developed ‘jurisprudence constante’, poses serious problems since it runs counter the very foundational principles underlying investment arbitration and the formal absence of binding precedent in international investment law. I will first briefly address the status of judicial and arbitral decisions as a source of general international law (1). I will then analyze judicial and arbitral decisions as a source of law in the decisions of international investment tribunals (2). In doing so, the absence of a formal rule on binding precedent in investment arbitration (2.1), the de facto importance of the use of precedent in international investment arbitration (2.2), and decisions of international investment tribunals with a ‘quasi-legislative character’ (2.3) will be discussed. I will finally turn to the question how certain jurisprudential developments have impacted on State practice in international investment law (3). It should be noted from the outset that the use of precedents from courts and tribunals outside the area of international investment law will not be discussed here considering the overall objective of the book to focus on the sources of international investment law only.

The use of Generative Artificial Intelligence (AI) tools in international commercial arbitration reveals a complex intersection with the potential risk of confidential data breaches. Adopting a doctrinal research approach, this research article analyses the legal and regulatory framework applicable to ensure responsible and ethical uses of AI so as to protect confidentiality in international arbitration. This article argues that the use of AI in international arbitration has brought in a new age of efficiency and accuracy in international arbitration, but it also raises concerns on the protection of confidentiality as third-party owned AI tools and systems are prone to a potential risk of confidential data breaches and confidentiality violations on volumes of data stored together in AI tools. The application of the guidelines and principles on the use of AI in international arbitration as well as emerging regulations and laws on AI have varied approaches that are either discretionary or only play a guiding role on the protection of confidential information in international arbitration. Ultimately, this article recommends that it is imperative for the upcoming versions of institutional arbitration rules to enhance the confidentiality obligations in arbitration proceedings with a focus on the integration of AI tools. Alternatively, with the use of confidentiality orders, arbitration participants must ensure that appropriate safeguards are in place to ensure that confidentiality is a core consideration from the initial stages of deploying AI tools. Confidentiality by design could also be applied in Generative AIs used by law firms, arbitral tribunals or institutions.

This article considers the role of national courts in investment treaty arbitrations between an investor and a host-State. While the ICSID arbitration regime provides for an a-national approach, the choice of alternative arbitral institutions or rules in an investment treaty could bring into issue the role of the courts of the place of arbitration. It is suggested that the involvement of a sovereign State as a party to such arbitration proceedings raises issues of state immunity not encountered in international commercial arbitrations. While an agreement in an investment treaty to arbitrate an investor-state dispute confers jurisdiction on an arbitral tribunal to determine the dispute, there is presently no global consensus that such an agreement alone amounts to a waiver of immunity of the host-State from the jurisdiction of other national Courts. Absent such waiver of jurisdiction, the court of the place of arbitration would lack legitimacy to exercise any ‘supervisory’ jurisdiction over the host-State party to ensure compliance under its domestic legislation. The authors suggest that national legislatures should consider this when reviewing applicable domestic laws on international arbitration and state immunity. Treaty negotiators should be aware as well of such limitations. State immunity, waiver of immunity, investment arbitration agreement, investor-State dispute, international arbitration, immunity from jurisdiction, court of the seat, supervisory jurisdiction

The author of the book outlines US common law doctrines related to international commercial arbitration. He presents the developments in the US common law jurisprudence in international commercial for two reasons: First to inform the reader regarding doctrinal transformations, and second, with hope of achieving the perfect workings of international commercial arbitration as an aspirational goal. To this end, examining the American influence on international commercial arbitration is important. The author suggests that US common law may help to overcome challenges arising out of cultural differences in international commercial arbitration. While doing so, there are important contrasting and competing principles to consider, such as party-autonomy and arbitrator discretion, which stand out as saliently competing paradigms. The author indicates that giving equal weight to these competing principles in international commercial arbitration might be a useful strategy to harmonize seemingly polar opposite propositions. The book focuses, in part, on the US common law of discovery and how it might be adopted in international arbitration to develop efficiency in such proceedings. The International Bar Association (IBA) Rules on Evidence Gathering, the Prague Rules, and the role of 28 U.S.C. §1782 in international arbitration are closely analyzed, among others, to develop alternative approaches concerning evidence gathering in international commercial arbitration. Overall, the book contributes important discussions and suggestions to the literature. Also, the text presents analyses and suggested solutions with the help of leading principles developed by US common law, which facilitates understanding these principles from the author’s perspective. While the book provides those valuable inquiries and discussions, the book review took a critical approach towards them. The authors of the review critically analyze those suggestions. The book review compares to other books that pursue a similar approach to international commercial arbitration. How justified suggestions in the book are, as well as their strong and weak points, are displayed in the review. Are all those suggestions in the book correct? It must not be forgotten that the book looks into issues from an American perspective and those suggestions are coming from US common law. However, this approach can be problematic in international arbitration. If there is a dominant legal system in international commercial arbitration, how “international” can international arbitration be? The review criticizes those contradictions and presents a comprehensive analysis of the book. The authors of this review believe that an idea can be developed if there is criticism against it. Thus, authors here offer a critical eye towards the book with the purpose of development of the ideas within the book. Acknowledging the hard work of the author of the book, the authors of the review offer some thoughts to develop the ideas in the book and to make its next edition even better. Therefore, those who are interested in learning about Martinez Fraga’s book with a critical approach can find some interesting insights from the review.

The distinction between substance and procedure in private international law has been subject to extensive debates among national courts and scholarly writings. The basic theme that procedural issues are governed by the lex fori, and substantive issues are subject to the lex causae, is widely accepted, although the boundaries between substance and procedure are not always clear. This article examines the application of the distinction between substance and procedure in the area of international arbitration, as regards both commercial cases and investment treaty disputes. It is argued that the distinction between substance and procedure has significant ramifications in international arbitration. The central (though not the only) aim of this distinction refers to the determination of the rules to be applied to borderline issues, such as evidentiary matters, interest, and limitation rules. Arbitral tribunals should have a considerable level of discretion in drawing the distinction. Specified points of guidance are suggested for common grayzone questions. Although the general principles concerning the substance/procedure distinction are similar in investment treaty arbitration and international commercial arbitration, material points of difference, such as the key role of public international law, may somewhat narrow the investment treaty tribunals’ discretion in respect of drawing the distinction.