Arbitration Clauses Research Articles

Understanding Conflict in the Franchised Restaurant Industry: Insights from Court Records

Relationships between franchisees and franchisors are susceptible to conflicts. This exploratory study employed a content analysis using a data triangulation of New York court records (23 cases, 3 dismissed) spanning from 1957 to 2016 and IFA corporate databases to explore the causes of conflict in the franchised restaurant industry. The findings revealed that the courts dismissed three lawsuits on jurisdictional grounds at the preliminary litigation stage. Out of the 20 cases, the courts found that 13 cases filed by the franchisees had no meritorious causes of action. This leads to a belief that the franchisees did not obtain sufficient advice from their attorneys or that they did not arbitrate their conflicts before filing the lawsuits. The primary theoretical implication of this study is that parties in franchising may recognize the red flags in conflict before advancing to the litigation stage. This would help the parties of interest to mitigate the tension in their relationship. Among the practical implications of this study include the recommendation for a better franchising regulation which safeguards the interests of all stakeholders. Policymakers should consider mandating arbitration clauses in the franchising agreements to balance the relationship between franchisees and franchisors.

Medical arbitration court: status and perspectives

Abstract. More than forty years ago, medical courts, which are arbitration tribunals (arbitration) for resolving medical malpractice disputes, emerged in the United States, while they remain relatively little known in our country. The problem of the study is the legal nature of medical disputes, the object is medical arbitration as a medico-legal phenomenon, the subject is the effectiveness of arbitration in resolving medical disputes. The issue of arbitrability, i.e. the admissibility of arbitration of a dispute: arbitration clauses are often challenged on the grounds that a patient could not reasonably express his or her will due to a medical condition. Despite conceptual difficulties, medical arbitration has been actively developed in the US since the 1980s. Its proponents emphasise a number of advantages over conventional litigation: speeding up the process, compensating a wider range of patients, reducing attorney fees, and improving patient safety. Opponents see as disadvantages the insufficient professional level of arbitrators, simplification of proceedings and its reduction to compensation payments, lack of connection between the activities of medical courts and improvement of the quality of medical care, transformation into an administrative procedure, "privatisation" of arbitration by large corporations. Some countries (South Korea, Indonesia, Mexico) implement arbitration in their country, but its results are rather modest. In Russia, medical disputes are characterised by increased complexity due to certain legal conditions. Alternative dispute resolution procedures are practically not used, and medical arbitration is expressly prohibited by the Code of Civil Procedure.

Litigating the Arbitration Clause: Considering Uber-Driver Arbitration in India

In Canada, hundreds of Uber drivers came together for a class action lawsuit against Uber seeking benefits under Ontario employment laws. In India, drivers engaged by an instant delivery service platform went on strike against a new pay structure under which the minimum pay-out per delivery was reduced, leading to a drop in the earnings of the service provider by 50% per day. The terms of service form part of standard form non-negotiable agreements. Companies that include a mandatory arbitration clause with such standard form contracts are increasingly facing lawsuits across jurisdictions. The Canadian Supreme Court held such an arbitration clause invalid, largely on the ground that it was part of a ‘standard form contract’ that was ‘non-negotiable’ and ‘realistically unattainable’. Enforcing such arbitration clauses with users have had mixed success, leading to business uncertainty and raising transaction costs due to litigation across jurisdictions. This article explores implications of decisions across jurisdictions regarding such arbitration clauses in the Indian context. The article then argues for a universal harmonization of rules from a global perspective by formulating a general principle to afford certainty to businesses operating at a global level.

The Hong Kong and English Approaches to Arbitrable Petition Debts After Sian Participation: Diametrically Opposed or Fundamentally Similar?

The English and Hong Kong courts’ respective approaches to winding-up petitions where a dispute as to the alleged petition debt falls within the scope of an exclusive jurisdiction or arbitration clause seem to have diverged following the decision of the Privy Council in Sian Participation. The English courts have reverted to the traditional approach of examining whether there is a bona fide dispute as to the petition debt, whereas the Hong Kong courts adopt an approach whereby the winding- up petition is to be dismissed in favour of determination in the agreed forum unless the debtor’s defence borders on the frivolous or abuse of process. This article considers the development of Hong Kong law on this point, and examines the extent to which the two approaches may lead to different results. Finally, it suggests that there may be good reasons for adopting Sian Participation in Hong Kong, even though this seems unlikely in the near future.

The Validity of an Arbitration Clause in a Deficiently Stamped Agreement: A Comment on the Seven-Bench Judgment

This case note seeks to analyse the judgment of the Supreme Court of India in its upholding of the validity of an arbitration clause in a contract not duly stamped. The ruling is unique, as the issue was taken up for the sole reason of bringing clarity to the matter by a seven-judge bench through a curative petition of the Dharmaratnakara Rai Bahadur Arcot Narainswamy Mudaliar Chattram v. Bhaskar Raju judgment. The subject matter of this case had already been decided by a five-judge bench in N.N.Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd. CIVIL APPEAL NO(S). 3802–3803 of 2020. The note analyses the final decision by the honourable court through its interpretation of the legislation involved and the doctrines applied. The note’s reference to the previous judgment also brings a clearer picture showing the application of the present judgment. Through a careful analysis, the note demonstrates how the Supreme Court’s decision can be seen to bring a progressive stance to the law and practice of arbitration in India and the significance thereof.

Changes of Paradigm in Private International Law of Contracts – A high-level comparison between 1989 and 2024, with tribute to the Unidroit Principles, the development of arbitration law and to Simplified Global Contracting

The article on German private law of contracts compares the state of private international law in Germany in 1989 with its state today, in 2024. It demonstrates a change of paradigm by looking at six selected parameters of relevance: (i) the respect of constitutional rights and European fundamental freedoms, (ii) the unitarian European character of private international law of contracts, subject to treaties, (iii) the dissemination of the CISG, (iv) the emergence of the the Unidroit Principles as a sound system of general principles and rules of international commercial contracts, (v) the development of international arbitration, and (vi) the emergence of internet and data platform based comparative legal research. Regarding the traditional private international law of contracts, as applied by European courts (of member states of the European Union), the author observes that more European uniformity has come at the cost of complexity. At the same time, the emergence and dissemination of the Unidroit Principles – described as “the biggest achievement of the international legal society since the year 534” – has enabled Simplified Global Contracting (i.e. the choice of the Unidroit Principles in combination with an arbitration clause) and thereby more freedom on a global level.

The Independence of Arbitration Clause from the Contract

The Independence of Arbitration Clause from the Contract

Case Note: Greek Supreme Administrative Court Extends CJEU’s Achmea and PL Holdings Jurisprudence to Contract-Based Arbitration

In 2022, the Greek Supreme Administrative Court (SAC) ruled that arbitration clauses contained in concession agreements that are classified as ‘investment contracts’ are contrary to Articles 267 and 344 TFEU and that, consequently, arbitral awards rendered on the basis of such clauses are ipso jure deprived of any preclusive effect. In reaching this conclusion, the Court relied on the CJEU’s judgments in Achmea and PL Holdings. The Court affirmed this ruling again in 2023. This case-law has come under heavy criticism in Greek legal literature. In addition to the sound legal arguments against it, commentators rightly point out to its farreaching implications which are certainly detrimental to the future of private–public arbitration in Greece.

Pizza Hut L.L.C. v. Pandya: Exploring the Validity of Pre-Dispute Jury Waivers

This Note analyzes a 2023 Fifth Circuit opinion concerning whether a contractual pre-dispute jury waiver is enforceable utilizing the knowing and voluntary factors and when challenged under general fraud allegations. The Fifth Circuit incorrectly weighed two of the voluntary and knowing factors—conspicuousness and unequal bargaining power—to be in favor of enforcing the jury waiver when the facts of the case and prior case law prove otherwise. The Fifth Circuit should have first applied a historical analysis in analyzing a constitutional right, but the court was reasonable in applying the arbitration rule to jury waiver provisions because waiving a jury right compromises fewer constitutional rights than an arbitration clause.

Beyond Diplomatic Protection: The Evolution of Investor Rights in International Law

The effectiveness and utility of diplomatic protection as a core mechanism for the traditional protection of investors’ interests has been challenged with the rise of bilateral investment treaties (BITs) and investor-state dispute settlement (ISDS) mechanisms. While diplomatic protection remains advantageous in some cases, particularly in investment treaties without arbitration clauses, this essay analyses its limitations in terms of politicisation, high costs, inefficiency and lack of investor control. In contrast, the investment treaty arbitration mechanism offers a more rapid, independent and predictable means of dispute resolution. This essay concludes that diplomatic protection, while not completely obsolete, is no longer the most attractive instrument in modern international investment protection and is gradually being transformed into a complementary tool.

Mandatory Arbitration Clauses in Employment or Independent Contractor Agreements: Assessing the Risks

Mandatory Arbitration Clauses in Employment or Independent Contractor Agreements: Assessing the Risks

The First French BIT

Abstract This article draws upon original research in the French government archives to uncover the story of the negotiations of France’s first bilateral investment treaty – a 1963 treaty with Tunisia. France’s model for the treaty was not Germany’s now-famous 1959 investment treaty with Pakistan but, rather, Switzerland’s own (and far more obscure) first investment treaty, also with Tunisia. The article also shows that the treaty’s invocation of ‘fair and equitable treatment’ was intended to reflect only what customary international law already required. The treaty, despite the lack of an investor-state arbitration clause, seems to have been a relative success. France and Tunisia, entangled in a complex and sensitive post-colonial relationship, successfully managed the fallout from Tunisia’s sudden nationalization of French-owned agricultural properties.

Kekuatan Mengikat Klausula Arbitrase Dalam Kontrak Kerjasama Ditinjau Dari Hukum Perjanjian Dan Undang – Undang Nomor 30 Tahun 1999 Tentang Arbitrase

In order for the parties to be able to use arbitration as a means of resolving disputes that may or may not have already existed, the most important thing they need to do is come to an agreement in advance that is written down and approved by the parties. In view of this, the issues that will be examined in this paper are: What is the place of the assertion proviso in Regulation Number 30 of 1999 concerning Discretion and Elective Question Goal, How is the limiting force of the mediation condition in light of agreement regulation. The system utilized is regulating juridical and is concentrated on utilizing the resolution approach and is connected to the issues examined. This study's findings are based on Law No. 30 of 1999, which stipulates that parties must first enter into an arbitration agreement or clause before arbitrating a dispute can be resolved. The reason for the limiting force of the discretion statement is Article 1338 passage (1) of the Common Code and Article 11 of Regulation Number 30 of 1999. A contract has binding force and must be carried out by the parties if it contains an arbitration clause.

The OECD Dispute Resolution System in Tax Controversies

The article analyses the latest international tax law developments in dispute resolution settlement protocols and the need for effective multilateral solutions to prevent international double taxation. While several treaties currently minimise the risks of international double taxation, more must be achieved to provide judicial remedies in cases where two states want to tax the same income simultaneously. The OECD has developed a dispute resolution system based on arbitration clauses to be introduced in conventions signed by the state and a brand-new MLI (multilateral instrument) that should be applicable on a broader scale. These remedies have proven unsatisfactory as the taxpayer is not entitled to play any role in these (arbitration) procedures and cannot stand personally in front of any panel. The authors argue that such a scenario is inconsistent with the rule of law and the due process clauses and should be amended. Creating a supranational court with the entitlement to adjudicate the power to tax would be the optimal solution, but this would collide with the position of several states and their distrust of the international judiciary in tax matters.

Binding Nature and Scope of the Arbitration Agreement Stipulated in the Articles of Incorporation for New Partners

A company formed with bylaws that include an arbitration clause and the entry of the participation of new partners and/or shareholders, a legal debate begins as to whether or not these partners and/or shareholders are subject to compliance with the arbitration agreement established in the bylaws and whether or not it is binding for the new partners and/or shareholders participating in the company. The above legal approach is a problem that has been discussed in the country for a decade now, without having reached a peaceful conclusion, since in different judicial scenarios two theses have been held contrary to each other, in this case the honorable Constitutional Court and the Superintendence of Corporations, have completely opposite positions. The purpose of this paper is to analyze the positions of both bodies in order to determine which of the two theories is more consistent with the regulations governing corporate activity, as well as the regulations governing the arbitration clause and the arbitration agreement.

INTERPRETING MULTIPLE DISPUTE-RESOLUTION CLAUSES IN CROSS-BORDER CONTRACTS

AbstractCross-border contracts often contain a clause which purports to reflect the parties’ intention regarding how disputes arising from their agreement should be resolved. Some such contracts might feature a “jurisdiction clause”, thus signifying the parties’ wish to subject their disputes to litigation before the courts in a specific state. Others may include an “arbitration clause”, meaning that claims arising from the contract should be subjected to an arbitral hearing. More unusual are cases in which the parties have included a jurisdiction and an arbitration clause in the same cross-border contract. This article seeks to assess English law’s approach to determining the parties’ preferred mode of dispute resolution in these more difficult cases. As it seeks to demonstrate, the current practice in this area is not always easy to defend. The article advances an alternative basis for determining which of the two competing clauses should prevail.

Caso Abradin-Petrobrás: o futuro da arbitragem em xeque?

The purpose of this article is to evaluate an issue involving arbitrator Anderson Schereiber in an arbitration case between minority shareholders and Petrobrás. To this end, carrying out a detailed study based on the reports from websites and magazines which highlighted the case is mandatory. In addition, a closer notion of the technical intricacies surrounding the statutory arbitration clause and the appointment of an arbitrator arising from it becomes necessary. As a result of the matter implying this topic, the study of the impediments and suspicions inherent in the judges registered with the arbitration chambers and, especially, what can be interpreted as a conflict of interest and its extent in the arbitrator's objection upcomes as a basic premise. Thus, the research problem to be answered through the text is: "Do cases such as the one occurred in the arbitration involving minority shareholders and Petrobras have the power to discredit the institute as a swift and effective measure in dealing with conflicts before the Public Administration?". In order to carry out this research, the deductive method was applied, as well as the bibliographical and documentary research was chosen among the existing technical procedures.

AI and the BoLC: Streamlining legal translation

Artificial Intelligence (AI) applied in the legal field has gained considerable ground in the recent years and is used in many fields, amongst which the legal one is of no exception. This paper wishes to explore the quality of the translation (from English into Italian) of an arbitration clause performed by the ChatGPT chatbot. To do so, the automatically generated target text is post-edited by consulting the BoLC (Bononia Legal Corpus) and the web as corpus in the gov.it Italian governmental domain. General and legal dictionaries are also used. The paper findings report some inaccuracies at word level which are easily tackled by corpus consultation. In view of the results obtained, however, complete reliance upon AI-driven solutions is not recommendable at the time being. Conversely, the use of ad hoc corpora and of targeted web searches are the most feasible and reliable solutions, although time-consuming.

The settlements of C.M.R. convention (Geneva, 1956) on the carrier’s liability – between mobility and incumbency

This paper analises the provisions of the Convention on the contract for the international carriage of goods by road (C.M.R.), adopted in Geneva, on 19.05.1956, which points the carrier’s liability for inexecution or partial performance of the obligations which arise from the C.M.R. contract. This research joints the analysis of the particularities of the liability with the possibility of examining litigations through international commercial arbitration. The study is focused on the interpretation of the art. 33 of the C.M.R. Convention, with the aim to clarify the possibility of inserting an arbitral clause in a C.M.R. contract. Considering that art. 33 of the Convention doesn’t settle the form of the arbitral clause in such a contract, there is going to be analysed the groundworks from the German, Polish and Swiss doctrine, for an efficient interpretation of the nominalized provision.

Procurement Disputes Arbitration: Main Problems at the Present Stage

The relevance of the paper is predetermined by the study of the key problems of arbitration in the context of the specifics of public procurement at the present stage, namely, the problem of determining the appropriate criteria for the conclusion and validity of arbitration agreements. The purpose of the study is to critically evaluate the so-called non-arbitrability formula, established in contemporary court practice; to disclose the algorithm for the emergence of contractual relations as a result of competitive procurement procedures; to substantiate the legal force of arbitration clauses incorporated into contracts before arbitration rules are deposited by the arbitration institution. The author sees the objectives of the study in substantiating the fundamentally permissible arbitrability of contractual disputes in all segments of procurement relations (not only by direct order under the federal law, but also for the future, including contractual disputes in the field of state defense orders due to the variety of available transactions); in identifying factors contributing to the proper assessment of an arbitration agreement for its validity. Methodologically, the paper is based on a set of general scientific (analysis, modeling, analogy, hypothesis), private scientific (formal logical, systemic, functional) methods, and uses the formal legal method. The results of the study allowed the author to draw conclusions about sufficiency of existing legislative regulation for assessing the conclusion and validity of arbitration agreements included in draft contracts at the stage of competitive procurement procedure; about the lack of grounds for evaluating these agreements for their compliance with the principles of procurement; aboutthe legal force of dormant arbitration clauses necessary for business turnover in the short term. The author suggests directions for improving law enforcement practice aimed at curbing abuses in terms of challenging arbitration agreements on the grounds of their non-conclusion and (or) invalidity.