Jurisdictional Matters in International Arbitration: Why Arbitrators Stand on an Equal Footing with State Courts

Gary Born’s magisterial new work, International Commercial Arbitration , published in two volumes, represents, in the range and depth of its coverage, and in the rigour and perception of its analysis, the most complete exposition of the law of international commercial arbitration ever available. Yet, perhaps the most remarkable thing about this book is what it represents in terms of a coming of age of the field of international commercial arbitration, such that a book of this kind could be written at all. Born states modestly in his ‘Introduction’ that his treatise ‘is intended to be clear, direct and accessible’, and so it is. Indeed, devotees of Gary Born’s earlier works, starting with his ground-breaking, now classic case-book International Civil Litigation in United States Courts, 12 will already well appreciate the ability of the author’s probing mind to unpick and present in deceptively simple terms the contentious controversies of our age. But this book sustains that research and analysis to embrace jurisprudence and doctrine from every corner of the world. It ‘rests on the premise that the treatments of international commercial arbitration in different national legal systems are not diverse, unrelated phenomena, but rather form a common corpus of international arbitration law which has a global application’. (Emphasis added) The notion of a common corpus of international arbitration law of global application is, in the present reviewer’s estimation, something rather more than a vision of arbitration as merely an expression of the parties’ will, delocalised from national legal systems. That conception of international arbitration has been with us for at least half a century, since the work of Berthold Goldman,13 and has recently received the distinguished blessing of the Supreme Court of Canada, which held in 2007 that ‘Arbitration is part of no state’s judicial system … The arbitrator …

The concept of delocalization in international commercial arbitration refers to the reduction or elimination of the connection between arbitration and national legal systems, particularly the law of the seat. It allows the arbitral process to function more independently, supported by international conventions and the principle of party autonomy. This article explores the theoretical foundations and historical development of delocalization, with a comparative legal analysis of its application in the legal systems of France, Switzerland, England, Singapore, Hong Kong, and Russia. Drawing from doctrinal sources, case law, and academic critique, the paper examines both the advantages and limitations of delocalization and evaluates its practical implementation in different jurisdictions. The study contributes to the understanding of how different legal systems respond to the tension between autonomy and control in international arbitration.

Empirical evidence indicates that national court judges fall prey to cognitive biases and heuristics. The same may be assumed for international arbitrators. Improving third-party adjudication through behavior-ally informed rules on procedure thus seems to be an avenue of research worth being pursued. In applying behavioral law and economics to international commercial arbitration, the present analysis shows (1) that behavioral economics can help to understand arbitrators’ behavior and (2) suggests how the law may mitigate their cognitive biases and heuristics in order to design more effective, efficient, and fair arbitral proceedings under the UNCITRAL Arbitration Rules. The analysis focuses on (i) the representativeness heuristic, (ii) anchoring, (iii) the hindsight bias, (iv) framing effects, and (v) the egocentric bias. Building on their underlying dynamics and recent research on context-dependent decision-making, corresponding debiasing mechanisms may be implemented into arbitral proceedings through either behaviorally informed (model) arbitration clauses or by complementing existing frameworks such as the UNCITRAL Notes on Organizing Arbitral Proceedings in a behaviorally informed manner. Hence, in applying insights from economics and psychology to international arbitration, the present analysis adopts a prescriptive approach, examining how to actively mitigate arbitrators’ cognitive shortcomings as much as possible. Ac-curacy in fact determination – or the search for the truth – is perceived as the central motivation of this approach. As prescriptive insights from behavioral economics are able to allow for more accurate judgment, behaviorally informed rules on procedure not only benefit disputing parties by enhancing the idea of due process, but in doing so, they also empower international arbitration as a legal institution when con-fronted with national legal systems.

INTRODUCTION. The issue of implementation of international legal norms is extensive and multifaceted, and most importantly, it is always relevant. Despite the long-term development of questions of the operation of international law in national legal systems, the issue remains in the focus of researchers. Russian scholarship is quite rich in research of this area, and the practice of Russian courts is also rich in examples of the use and application of international law. Their presentation at the international level can significantly enrich the basis for analytical comparisons with the practice of other countries and further developments in this area. Nevertheless, the research of Russian authors is not well represented in the international legal discourse: the appearance of works by our compatriots in foreign editions is not so frequent. That is why monographic research papers by Russian authors published in major foreign publishing houses is of great interest to both Russian and foreign readers. At the same time, such publications implicitly set a high bar for expectations from their content.MATERIALS AND METHODS. The article presents a critical understanding of the monograph of Professor S. Marochkin, published in 2019 by one of the world's oldest publishers Brill-Nijhoff (Leiden, the Netherlands) – "the Operation of international law in the Russian legal system. Changing approach". The article highlights key elements of the study. Special attention is paid to the reflections and conclusions of the author of the monograph on the theory of international law. The analysis of the research is based on general and private scientific methods.RESEARCH RESULTS. Th reviewed monograph presents to our attention a wide range of Soviet and Russian general theoretical, discipline-specific and international legal doctrines. The work covers a significant period of theoretical, normative, institutional and practical development of the issue of implementation of international legal norms – more than three decades. This corresponds to the goal set out in the study – to show a changing approach to the issue in scholarship, judicial practice, and rule-making. The monograph consistently exposes the author's idea about the essence of national implementation of the principles and norms of international law, domestic legal and institutional mechanisms for such implementation, assessment and generalization of the practice of Russian courts related to the appeal to international law and the application of international legal norms. At the same time the monograph begs some questions: 1) on the author's understanding of the content of the concerned concepts in the theory of international law; 2) on the methods of law-formation in the national and international legal system; 3) on the constituent elements of the international legal system; 4) on the meaning and nature of self-executing international legal norms; 5) on the problem of international legal personality; 6) on the author's view of the state of modern legal scholarship in Russia.DISCUSSION AND CONCLUSIONS. Russianscholarship, as well as practice in the law-making, law-application and law-enforcement have gone a long way in mastering and ensuring the constitutional provision on the principles and norms of international law and international treaties of the Russian Federation as an integral part of the national legal system. The reviewed book emphasizes the importance of theoretical justification and competent application of theoretical theses on the place and role of norms and sources of international law within national jurisdiction, on the correlation of the legal force of international and domestic norms. Indeed, both legal scholars and public institutions that directly address questions about the operation of international legal norms need to have a complete understanding about the functioning of the regulatory and institutional mechanism for implementation of international legal obligations in the domestic sphere. In this light, it is reasonable to attach particular importance to the role of the judiciary branch in appealing to and applying international law. The research paper consistently demonstrates changes in the practice and approaches to the perception of international law over time with ups and downs in the estimation of its significance and role in the country's legal order. Although the study claims to offer an exhaustive fundamental analysis of all the problems raised, the author still makes some theoretical mistakes that complicate the correct understanding of his analytical work. Thereby the author challenges himself to continue the research of the issue in order to untangle some knots of doctrinal contradictions.

ARBITRATORS AS THE CENTER OF A HETERARCHICAL SYSTEM International arbitration is a particularly good example of confronting complexity in modern international law and dispute settlement. One-off arbitral tribunals, constituted under different arbitral rules and without a uniform supervisory mechanism, resolve individual cases based on different national and international standards and thus create a tremendous risk of inconsistent decisions. This leaves many observers with the perception that international arbitration resembles a chaos of unconnected episodes of dispute settlement rather than a structured system. This perception reflects the absence of hierarchical ordering structures usually associated with systems of dispute settlement in the domestic context where a supreme court ensures convergence and unity. International arbitration, by contrast, operates in predominantly heterarchical structures. In them, the system's unity cannot be forged through hierarchy but requires auto-convergence of independent actors. For once, elements of convergence exist in the wide adherence of states to important international conventions and due to the harmonizing effect of model laws. Yet every arbitral tribunal remains king in its own empire. Still, one can observe considerable convergence, and hence order, in the practice of arbitral decisionmaking. Convergence is reflected less in legal sources but crystallizes in the sociological structures and linguistic practices of international arbitration. Just as one requires highly elaborate methods of fractal geometry to uncover ordering structures in Jackson Pollock's seemingly chaotic drip paintings, (1) one can uncover order in international arbitration by analyzing the discourse in and about international arbitration rather than concentrating on formal sources. To understand arbitration as a system thus means understanding the importance and power of arbitrators. They are the center that can forge international arbitration into a system or dissolve it in infinite fragmentation. Similar to courts in the domestic context, arbitrators as a group are the key institution for the emergence, persistence, transformation, and hence existence, of international arbitration as a system. (2) After all, uniform substantive and procedural rules only translate into a system if arbitrators apply them accordingly; likewise, arbitrators can even forge divergent legal rules into a convergent and structured whole. Arbitrators therefore determine the gestalt of international arbitration. INTERNATIONAL ARBITRATION AS GLOBAL GOVERNANCE The idea that arbitrators determine whether international arbitration constitutes a proper system is closely linked to understanding the function of arbitration not only as a mechanism to settle individual disputes, but as an instrument of global governance. (3) After all, the concept of a system implies that there is an overarching structure connecting individual instances of dispute settlement. This overarching structure develops chiefly on the basis of arbitral precedent. (4) Building on the increasingly widespread publication of arbitral awards, in investment treaty but also in commercial arbitrations, both the decisionmaking of international arbitrators and the argumentation of parties appearing before them are highly precedent-driven. Although it is non-binding, arbitral precedent becomes the primary sources for guiding the resolution of international disputes. It is the use of, and reference to, arbitral precedent that lets arbitrators transform international arbitration into an independent system. Not all arbitrators, however, accept that they operate in a system of governance. They stress that arbitration is a party-controlled and party-owned process in which arbitrators function as agents of the parties. (5) Such a position, however, is not particularly convincing, considering how crucial arbitral precedent has become in forging normative expectations of actual and future parties about how international disputes should be resolved and how parties to international transactions should conduct themselves in the shadow of rulings of arbitral tribunals on matters of substantive and procedural law. …

National courts have restricted party autonomy in choice of law in a variety of ways. In international arbitration, on the other hand, the march of party autonomy has been unhindered. National courts have abetted this process in the international arbitration context, even as they have maintained restrictions on party autonomy in choice of law within their own legal systems. This phenomenon, combined with the gradual loosening of restrictions on party autonomy in national legal systems, has led some to claim that international arbitration is leading the nations of the world into a global choice of law regime in which party autonomy reigns. Such triumphalists look forward to the day when party autonomy is as unrestricted in national courts as it is in arbitration.This article argues that such a day is unlikely to arrive. The different pressures and interests that shape national court litigation on the one hand, and international arbitration on the other, are likely to generate different levels of support for party autonomy in choice of law. As a result, regardless of whether more party autonomy in choice of law is preferable in all contexts, or whether it ought to have a wider scope in arbitration than in litigation, arbitrators are likely to maintain greater deference to party autonomy than will national legislatures or courts.Note: This paper represents an early version of some concepts and arguments that I develop better and in more depth in my book, The Culture of International Arbitration and the Evolution of Contract Law (Oxford University Press, 2013).

An integral part of any legal system, and a key to its effectiveness, are the enforcement mechanisms provided to ensure compliance with its laws. In the context of economic integration, enforcement mechanisms are avenues through which community and national legal systems are linked. Enforcement of community law strengthens a community's legal system, at both community and national levels. It allows individuals to benefit from the integration process. This enhances the legitimacy of the community legal system, creates a national constituency with interest in community law and provides a focal point of interaction between national and community legal systems. Enforcement of community law occurs at both national and community levels. Indeed, unless there is effective enforcement at both levels, and a high level of coordination between them, community law will become ineffective. Put differently, a disjunction will be created between community and national legal systems, and the effectiveness of the community will be undermined. An essential feature of an enforcement mechanism that is likely to ensure the effective implementation of community law is its ability to take advantage of pre-existing law-enforcement regimes in member states. As Shaw has observed, ‘it is precisely because of the inadequate enforcement facilities that lie at the disposal of international law [community law] that one must consider the relationship with municipal law as more than of marginal importance’. Accordingly, proper relations between a community and pre-existing national law-enforcement institutions or mechanisms are important for community law's effectiveness. In the preceding chapter, we discussed how trilateral relations between individuals and courts at the national level and community courts can enhance the work of the latter. This chapter examines the extent to which this idea is reflected in the design of institutions responsible for the enforcement of the laws of the African Economic Community.

IT IS a great honour to be asked to deliver this Goff lecture, not only because it is a privilege to follow in the footsteps of so many distinguished lecturers but also because this lecture bears the name of one of the most respected English jurists of my professional lifetime. There are many stories of Robert Goff: he was one of the greatest advocates I ever heard; he was a creative scholar; he was the most courteous judge; he is now a distinguished arbitrator; but above all else, he was and remains the epitome of fairness and human decency. To listen to his advocate's argument even in the most contentious case provoked no sense of ill-will, just despair at the power of his legal logic; and to lose a case before him as judge left only a strong sense of his intellectual honesty. To Lord Goff, the title of this lecture might seem so self-evident as to preclude any serious debate. Sadly, however, the debate is provoked by growing difficulties which cause the practice of transnational arbitration to fall short of his ideals. For the parties to an international commercial arbitration, justice should be the paramount objective; and procedural fairness by their legal representatives is subsumed in that single objective. But the practice of international arbitration is not so simple, certainly not for the parties professional lawyers coming from different jurisdictions to a still different place of arbitration. Lawyers are not musicians or ballet dancers: a lawyer's training, skills and ethics are still essentially rooted in a national legal system; and it is far from clear how and to what extent national professional rules apply abroad to the transnational lawyer in the international arbitration process. For example, for a European Union lawyer practising abroad in a host Member State, Article …

The subject of the research is the peculiarities of the implementation of international law in national legal systems, the law enforcement practice of the implementation of international legal obligations of the state, doctrinal approaches to the interaction of the norms of international and domestic law. The purpose of the article is to confirm or disprove the hypothesis that the limits, forms and methods of the ex-ante intrusion of international law into the national legal system are determined not only as a result of the agreed will of States, but also against such will, under the influence of the interests of individual States or their political blocs that occupy a dominant position in an international organization. Methodology. The authors use such general theoretical and specific scientific methods as comparative analysis, generalization, interpretation and classification as well as systemic analysis and formal logical methods. The main results. The forms and methods of intrusion of international law into the legal systems are diversified. International law is not limited to interstate relations. Global processes require the development of new scientific approaches to understanding the processes of intrusion of international law into the legal systems of States. These processes require the study of the forms and methods of the impact of international law and international institutions on the national legal order. States are sometimes forced to implement measures developed in the international implementation mechanism (due to the need for international financial assistance as well as the inability to single-handedly defeat internal corruption, create a favorable international image, etc.). The international legal invasion exist already ex – post through the decisions of international judicial bodies or the assertive recommendations of international organizations. Their demands are made not just to comply with international obligations, but to change national legislation. The implementation of the norms of international law in national legal systems should be carried out at the domestic level just as much as it is necessary to fulfill these international obligations. The law enforcement practice in the state is based solely on national principles of law, and it is unacceptable to comply with the requirements from the outside to change them from the point of view of the independence of the state. It is the exclusive right of each State to determine the content of acts of interpretation of international bodies in relation to the decisions and actions of specific States from the point of view of their national interests. We prove that every state has the important right to determine the limits of the invasion of international law in their national legal system: the contents of implementing legislation; the completeness of implementation of the decisions and recommendations of international bodies and courts; the recognition of the extraterritorial validity of foreign law and forms of its implementation. Conclusions. The fundamental principle of international law- pacta sunt servanda – is transforming into a practical imperative – national legislation must change. This is due to the recognition of the jurisdiction of international judicial bodies. This is due to the extraterritorial effect of foreign law; it is connected with the transnational character of the law of international integration entities. This is due to the inability of individual States to resist exponential corruption. The continuous nature of the intrusion of international law into national legal systems is reflected in the various methods of such interference. The article proves the importance of each state having the right to independently determine the limits of the intrusion of international law into their national legal system.

Interim measures are an important tool in international arbitration when there is a threat that the opposing party will cause irreparable harm to the requesting party. For an interim measure in international arbitration to be effective, a certain level of cooperation between the competent state court and the arbitral tribunal is needed. Regardless if the interim measures are ordered by the arbitral tribunal or the state court in support of the arbitration proceedings, they need to be enforced by the state courts. This paper analyses the possibility to interpret the national legislation of Bosnia and Herzegovina, as well as the applicable international conventions, more broadly to provide for effective interim measures in international arbitration on the territory of Bosnia and Herzegovina. A comparison to the national legal systems of Croatia, Serbia and Slovenia is conducted with the aim to find appropriate solutions for the interpretation by the state courts of Bosnia and Herzegovina.

The article discusses the controversial issue of the relationship between arbitration and law, initiated at the time by the famous jurist F. Mann. The formulation of this problem seems paradoxical: either law creates arbitration, or arbitration creates law. One or another development of the discussion has important practical consequences, consisting in determining the direction of law enforcement and possible regulation. The author, based on the analysis of the theory of arbitration delocalization, aims to identify trends in the development of international arbitration and the role of arbitrators in this process. The delocalization theory taking root in international practice and the practice of individual legal systems leads to the separation of arbitrators from national legal systems, which stimulates their almost unlimited discretion, and this in turn becomes a source of instability in law enforcement. An analysis of the relationship between international commercial arbitration and international investment arbitration provides grounds for concluding that investment arbitration arbitrators are more independent of national legal systems. As a result, in the absence of appropriate regulation, investment arbitration arbitrators are more inclined to create law, sometimes disregarding established approaches. At the same time, their discretion is limited only by self-censorship. This situation has led to a crisis in investment arbitration, the need for reform of which has been under discussion for a long time. Conclusion: objectively, the concept of delocalization reflects the trend of globalism of the world order and to a certain extent contributes to the destruction of the centuries-old Westphalian system on which the established international relations rest.

The subject of the research is the peculiarities of the implementation of international law in national legal systems, the law enforcement practice of the implementation of international legal obligations of the state, doctrinal approaches to the interaction of the norms of international and domestic law. The purpose of the article is to confirm or disprove the hypothesis that the limits, forms and methods of the ex-ante intrusion of international law into the national legal system are determined not only as a result of the agreed will of States, but also against such will, under the influence of the interests of individual States or their political blocs that occupy a dominant position in an international organization. Methodology. The authors use such general theoretical and specific scientific methods as comparative analysis, generalization, interpretation and classification as well as systemic analysis and formal logical methods. The main results. The forms and methods of intrusion of international law into the legal systems are diversified. International law is not limited to interstate relations. Global processes require the development of new scientific approaches to understanding the processes of intrusion of international law into the legal systems of States. These processes require the study of the forms and methods of the impact of international law and international institutions on the national legal order. States are sometimes forced to implement measures developed in the international implementation mechanism (due to the need for international financial assistance as well as the inability to single-handedly defeat internal corruption, create a favorable international image, etc.). The international legal invasion exist already ex – post through the decisions of international judicial bodies or the assertive recommendations of international organizations. Their demands are made not just to comply with international obligations, but to change national legislation. The implementation of the norms of international law in national legal systems should be carried out at the domestic level just as much as it is necessary to fulfill these international obligations. The law enforcement practice in the state is based solely on national principles of law, and it is unacceptable to comply with the requirements from the outside to change them from the point of view of the independence of the state. It is the exclusive right of each State to determine the content of acts of interpretation of international bodies in relation to the decisions and actions of specific States from the point of view of their national interests. We prove that every state has the important right to determine the limits of the invasion of international law in their national legal system: the contents of implementing legislation; the completeness of implementation of the decisions and recommendations of international bodies and courts; the recognition of the extraterritorial validity of foreign law and forms of its implementation. Conclusions. The fundamental principle of international law- pacta sunt servanda – is transforming into a practical imperative – national legislation must change. This is due to the recognition of the jurisdiction of international judicial bodies. This is due to the extraterritorial effect of foreign law; it is connected with the transnational character of the law of international integration entities. This is due to the inability of individual States to resist exponential corruption. The continuous nature of the intrusion of international law into national legal systems is reflected in the various methods of such interference. The article proves the importance of each state having the right to independently determine the limits of the intrusion of international law into their national legal system.

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 article examines the problematic issues of the grounds for litigation in international commercial arbitration. The urgency of this topic is due to the need for a lack of clear definition of the prerequisites for resolving disputes, as well as the procedure for their use in the practice of international commercial arbitration. In addition, the problematic aspects of dispute resolution in international commercial arbitration are analyzed and procedural measures for their resolution are identified. To achieve this goal, the material preconditions for dispute resolution in the ICA were studied and the procedure for resolving disputes was determined. The preconditions for transferring a dispute to international commercial arbitration, which are the advantages of arbitration compared to state courts, are, first of all, that it provides a more acceptable, accessible and simpler procedure for resolving disputes compared to state courts. In other words, it is a procedure established by the parties to the dispute, which in general can be adequate and adapted to make agreed decisions. Even when the parties turn to a permanent commercial arbitration, which has its own rules of procedure, they can provide for arbitration. The UNCITRAL Arbitration Rules of 2010 stipulate that when the parties decide to submit disputes to arbitration in accordance with these Rules, they shall be considered in accordance with these Rules. The study identified a number of major risks and difficulties faced by the party in applying to a state court: ignorance of the procedure required for a foreign state court; the obligation to conduct the proceedings in the language of the court’s location; the existence of several instances and the procedural formalism that occurs when applying to the general courts; judges do not always have the appropriate competence to deal with disputes arising from foreign trade; gathering evidence and evaluating it on the basis of the national legal system. The study concluded that the benefits of international commercial arbitration, in the presence of prerequisites for litigation, give much better benefits for litigation, which forms its authority among the relevant categories of legal entities and individual entrepreneurs.

The National Legal System currently being built is the Pancasila Legal System, namely a legal system based on the 1945 Constitution of the Unitary State of the Republic of Indonesia with the spirit of Pancasila. The aim of this research is to clarify the national legal system from the perspective of Pancasila and the 1945 Constitution. The methodology of this library reseach will explain Pancasila values from the national legal system and in statutory regulations which can be reviewed comprehensively in this paper. The results of this research will explain the need for the development of a sustainable national legal system with the character of the Indonesian nation based on legislation and Pancasila. To understand the national legal system well, you must first be equipped with the basics. This is important as a first step in studying the national legal system in more depth.