Arbitration Decisions Research Articles

Bargaining in the Shadow of Awards

Abstract International investment disputes occupy a curious place in the research programme on compliance. On the one hand, there is a widespread presumption that respondent states generally pay the compensation that they are ordered to pay because not doing so risks more litigation or less investment. On the other hand, these disputes frequently continue long after awards are handed down, there are visible instances of non-payment and there is little evidence about if or how most disputes are actually resolved. Compliance with investor-state dispute settlement (ISDS) awards has also been difficult to study because much of what occurs after an arbitral decision falls outside traditional understandings of compliance processes. Therefore, in this article, we introduce a broader term – resolution – and look beyond payment at a wider landscape of post-award dynamics. We also introduce a framework to bring these dynamics into view. This framework places awards in the context of longer-term bargaining and articulates how bargaining is different when it occurs in the shadow of an award. We present three mechanisms through which awards can shape outcomes – as a legitimate outcome, as a coordinating focal point, or as a bargaining endowment – before arguing that the third mechanism is the most common in the context of ISDS.

Enhancing anti-corruption via investment arbitration: from red flags to due diligence

Abstract As the number of corruption allegations in investor–State disputes (ISDS) grows, tribunals must balance their duty to resolve disputes and to render enforceable awards. Given the difficulty of proving corruption, arbitrators increasingly consider red flags to detect it, but still struggle with drawing consequences for corrupt conduct that would serve as an effective deterrent. Our empirical analysis of 92 ISDS cases that involved allegations of corruption reveals that over a quarter of arbitral decisions already utilize a red flags approach, which helps tribunals assess corruption risks and provide circumstantial evidence. This article proposes a novel list of red flags based on the empirical analysis, domestic and international law sources as well as soft law instruments. It then frames a corresponding anti-corruption due diligence mechanism, which can minimize the risks of corruption occurring, bring more predictability to ISDS and disincentivize frivolous allegations of corruption.

AI as a tool to enhance digital arbitration effectiveness (Analytical study under silicon valley arbitration center guidelines)

This research addresses the role of artificial intelligence in enhancing effectiveness of electronic arbitration, focusing on Silicon Valley Arbitration Center guidelines. The research is intended to assess effectiveness of those guidelines in enhancing justice, efficiency and transparency of arbitration procedures, analyze impact of artificial intelligence on expediting the arbitration process and assess accuracy and objectivity of arbitral decisions should those guidelines are followed. The research also provides practical recommendations to implement artificial intelligence in the field of arbitration, focusing on improvement of Egyptian Arbitration Act to support using that sophisticated technology. The research highlights significance of technology in improving legal processes and introducing justice in a more efficient and effective form. It also reviews benefits and challenges pertaining to using artificial intelligence in electronic arbitration. Moreover, the research poses key questions on legal and ethical effects and the challenges encounter implementation of artificial intelligence in this field, and how the existing legal systems adapt to that technology.

The Effectiveness Of The Implementation Of The Principle Of Confidentiality In The Enforcement Of Arbitral Awards In Indonesia

Litigants through ordinary courts (national of a country) have been generally considered ineffective for entrepreneurs. Therefore, the settlement of cases outside the court on the basis of peace is allowed by law in this case the law on judicial power. This is intended to facilitate the settlement of business disputes arbitration institutions have several advantages over the general judiciary. These advantages include guaranteed confidentiality of the parties ' disputes from the public. Delays caused in procedural and administrative matters can be avoided. The parties may select arbitrators who, in their belief, have knowledge and experience in resolving business disputes. However, there is a conflict between the principle of confidentiality in arbitration proceedings with the obligation to register an arbitration award to the court to obtain an executive warrant, where the court will provide case numbering and the hearing schedule will be uploaded to The Case Tracking Information System (SIPP). Initially, the public did not know that there was an arbitration hearing between Company A and Company B, but because of the system of registering decisions in court to obtain a writ of enforcement, the public became aware that there was an arbitration decision on a dispute between Company A and Company B, so that the effectiveness of the confidentiality principle did not work effectively and a Judicial Review of Article 59 of the arbitration law and APS was necessary for the implementation of the principle of confidentiality perfectly on the enforcement of arbitration decisions in Indonesia.

Juridical Review of the Implementation of Foreign Arbitration Awards in Indonesia in the Perspective of Constitutional Court Ruling Number 4/PUU-XXII/2024

The implementation of foreign arbitration awards in Indonesia from the perspective of Constitutional Court Decision Number 4/PUU-XXII/2024 is crucial in both international and domestic legal contexts. This article provides a strong legal basis for arbitration usage in resolving cross-border business disputes in Indonesia, both domestically and internationally. The research contributes to the legal field by offering an in-depth normative juridical analysis of how unfamiliar discretion grants are executed in Indonesia. Data analysis was carried out descriptively and qualitatively. The research topic, namely, the Juridical Review of the Implementation of Foreign Arbitration Decisions in Indonesia in the Perspective of Sacred Court Choice Number 4 is analyzed using deductive methods, which entail deriving conclusions from general to specific, particularly regarding the research topic. In this specific situation, a juridical survey of the execution of unfamiliar mediation grants in Indonesia becomes vital to comprehend the effect of established Court Choice number 4 on international arbitration practices, legal certainty, and the investment environment in Indonesia.

Peran Arbitrase dalam Penyeleseaian Sengketa di Luar Pengadilan Menurut Undang-Undang No. 30 Tahun 1999

Apart from regulating the use of arbitration, Law Number 30 of 1999 concerning Arbitration and Alternative Conflict Resolution encourages business actors to examine alternative conflict resolution. Arbitration is a method of resolving a civil settlement outside of general court which is based on an arbitration agreement signed between the parties. According to Law Number 30 of 1999, alternative recovery methods include mediation, negotiation, consultation, expert review and conciliation. Arbitration comes from the Latin word arbitrare which means the power to resolve something based on discretion. The appointment of arbitration with discretion gives the impression that an arbitrator is someone who can reach a more reasonable conclusion regarding the settlement. This research method uses a descriptive analysis approach which uses factors that influence the advantages of arbitration and this data source is secondary, namely according to legal documents - Law number 30 of 1999 and related laws, as well as journals and books. The fact that the arbitrators are selected by both parties to the dispute and are experts in their fields indicates that they are informed about the issues at hand, which is one of the benefits of resolving conflicts outside the court system rather than through litigation. Second, settlement decisions are made behind closed doors, so that only a few parties know the main issues at issue. Specialization or expertise in case management gives clients confidence• Arbitration is a popular alternative in business settlements due to several key advantages. The closed process maintains confidentiality and avoids adverse publicity. Arbitration decisions are final and binding, and the process is faster and more predictable than court. Flexibility in selecting arbitrators and arbitration procedural rules also provides parties with greater control over the outcome of their settlements. Overall, arbitration achieves amicable resolutions, supports sustainable commercial relationships, and allows for resolution in a more efficient and effective manner

Legal Certainty for the Execution of Arbitration Decisions on Marriage Agreement Disputes for Foreign Citizens In Indonesia

With this type of normative juridical research and using a statutory approach and a case approach by studying and analyzing all legal aspects, this research examines the legal certainty of the execution of Alaska state arbitration decisions regarding marriage agreements between foreign citizens who have assets in Indonesia. Arbitration is an alternative dispute resolution that is in great demand by many parties. However, in Indonesia itself the execution of international arbitration awards only revolves around trade disputes. On this basis, the international arbitration award regarding the marriage agreement dispute cannot be executed in Indonesia. Indonesia needs to make improvements to expand its authority so that international disputes do not only revolve around trade disputes, but also family disputes with the possibility of mixed marriages which then give rise to disputes such as property or custody as a result of mixed marriage divorce.

The Consideration of Arbitration Decisions and awards as Official Documents

The Consideration of Arbitration Decisions and awards as Official Documents

Annulment of The Arbitration Decision Accordin to The Legislation and Practice

Objective: The study of the work has a comprehensive approach, based on current legislation and practice. Based on the fact that the arbitration procedure is an alternative procedure for the resolution of disputes, it is quite demanded, and that there are deficiencies in the literature as well as in the knowledge of the subjects of the law. Thus, when it came to the decisions made in the arbitration procedure, we say that they have the same legal force as the decisions made by the regular courts of the state, and also the annulment of the decision requires special clarification, since there are cases that the decision made in the arbitration proceedings are required to be set aside as the reason that the agreement to arbitrate is void. Thus, the purpose of this paper is to clarify in short points that it is possible to annul an arbitration decision in the event that the arbitration agreement was invalid. Method: The work is formulated on the basis of appropriate scientific methods. The methods that are included in the paper are scientific methods, historical methods, comparative methods, deduction methods, induction methods, and other methods without which the paper could not be formulated! Result: The decision made in the arbitration procedure must be made in accordance with the law on arbitration as well as with the principles defined in the law on arbitration, whether domestic or international. If it is found that the arbitration decision is illegal, or not based on evidence, then the same can be annulled. This annulment can be done by the regular state courts, but always in case the party that has a legal interest addresses the court and requests the annulment of the arbitration decision because it is contrary to the law on arbitration or contrary to the agreement on arbitration. or other reasons which the parties may present in the action for annulment of the arbitration award. We will talk more about the annulment of the arbitration decision in the content of this paper. Conclusion: As a conclusion of the paper, in the general sense of this paper, I have mentioned that the parties during the terms of the agreement must be careful not to conflict with any reason that leads to the invalidity of the arbitration agreement, since this invalidity will have consequences in in the event that an arbitration award has been given by this agreement, as from the regular courts this award will be annulled because the arbitration agreement has been invalid since the beginning of the criminal offense of this agreement or may become invalid and with the passage of time. So, during any action taken by the parties who claim to resolve their dispute through arbitration, they should be careful that everything is in order with the arbitration agreement, as the invalidity of the agreement may lead to the annulment of the award. of arbitration and this would be to the detriment of the party.

뉴스 빅데이터 분석을 통해 본 지역사회 갈등과 갈등 해소를 위한 민원배심제 운영

In this study, we reviewed the literature on community conflict and conflict mediation and performed empirical study with LDA-based topic modeling to understand conflict patterns in Suseong-gu, Daegu, and then analyzed cases of conflict mediation through the civil jury system. It was conducted based on analysis of civil complaint jury minutes for about 10 years (April 28, 2011 - July 3, 2019) and news data from the same period. From this, the implications of the civil jury system as a community conflict management mechanism were presented through an understanding of complex and multidimensional conflicts in the community. The main concepts of the Citizens' Jury System identified in the study consist of three components. Firstly, there are conflicting parties seeking understanding, followed by the forum of communication, which could be referred to as the “public sphere,” created through complaints arbitration meetings to facilitate dialogue. Lastly, there is the neutral third-party group who mediate to induce agreement among conflicting parties and thereby reduce or resolve conflicts. The process of the Citizens' Jury meetings not only prevents the polarization of conflicting groups but also holds significant implications beyond the institutional aspect of conflict resolution, including rational mediation by a third party well-versed in local community affairs, overcoming/solving rational ignorance through information sharing in the conflict public sphere, voluntary participation by complaints arbitrators, and compliance with arbitration decisions, contributing to the augmentation of social capital and effective conflict resolution.

ENFORCEABILITY OF UMBRELLA CLAUSES BY INVESTMENT ARBITRATION TRIBUNALS

Over the last few decades, one of the most contentious issues of the international investment law has been the interpretation of the ‘umbrella clauses’. Since the umbrella clauses are generally vague, short and hidden in international investment agreements, the interpretation of the clause is in a controversial position and thereby having been subject to the scholarly interest. Should umbrella clauses in international investment agreements be enforceable by arbitration tribunals? Or to what extent investor’s claims stemming from a contractual bre-ach could be enforceable by arbitration tribunals? SGS v Pakistan and SGS v Philippines have addressed these questions and reached opposite decisions. This article aims to examine the contradictory arbitral deci-sions and to discuss broad and restrictive approaches. The article begins with a brief review of umbrella clauses. Then, it analyses leading arbitral cases with the help of scholar views in order to shed the light on critical aspects of the issue.

THE DICHOTOMY BETWEEN JURISDICTION AND ADMISSIBILITY IN INTERNATIONAL ARBITRATION

AbstractThe dichotomy between jurisdiction and admissibility developed in public international law has drawn much attention from arbitrators and judges in recent years. Inspired by Paulsson's ‘tribunal versus claim’ lodestar, attempts have been made to transpose the distinction from public international law to investment treaty arbitration, yielding a mixed reception from tribunals. Remarkably, a second leap of transposition has found firmer footing in commercial arbitration, culminating in the prevailing view of the common law courts in England, Singapore and Hong Kong that arbitral decisions on admissibility are non-reviewable. However, this double transposition from international law to commercial arbitration is misguided. First, admissibility is a concept peculiar to international law and not embodied in domestic arbitral statutes. Second, its importation into commercial arbitration risks undermining the fundamental notion of jurisdiction grounded upon the consent of parties. Third, the duality of ‘night and day’ postulated by Paulsson to distinguish between reviewable and non-reviewable arbitral rulings is best reserved to represent the basic dichotomy between jurisdiction and merits.

Право на забастовку в современной России

The article presents different approaches to the right to strike as part of another right (the right to association, the right to labor disputes, the right to collective action). The objectives of the strike, stipulated by the legislation of the Russian Federation and proposed by the Committee on Freedom of Association of the International Labor Organization are compared. The cases in which it is expedient to simplify the procedure for conducting a strike are highlighted and justified: 1) non-fulfillment by the employer of a collective agreement; 2) non-fulfillment by the employer of agreements reached by the parties to a collective labor dispute; 3) non-fulfillment by the employer of a labor arbitration decision.

Публичный порядок: к проблеме институционализации в международном гражданском процессе

Neither Russian nor foreign legislation has established criteria for determining public order, the understanding and guidance of which could provide stability and legal certainty for participants in disputes and economic relations. For procedural law and legal relations related to the execution of foreign court decisions and arbitrations, the contours of the definition of public policy are specific. The authors set out to consider the approaches that have developed in Russian law enforcement practice in terms of defining public policy as a criterion for checking the compliance of foreign arbitration decisions to be enforced in the Russian Federation, with the prospect of specifying Russian procedural legislation.

Nezakonito pribavljeni i poverljivi dokazi u arbitraži

Subject of this article are illegally obtained and confidential evidence that parties rely on in arbitral proceedings. Although arbitration owes its existence to the agreement of the parties, the question that poses itself is if this agreement allows them to rely on illegally obtained and confidential evidence or is this the place where their autonomy will be limited. Having in mind that there are no strict rules that regulate this topic, in order for us to come to an answer, this article will firstly analyze arbitral decisions. Due attention will also be given to the general principles of the arbitral proceedings that tribunals rely upon. The goal of this article is to prove that these general principles are more than enough and that strict rules in this area of arbitration are not needed. Moreover, legal interest will be best served if we allow arbitrators to base their decisions on the said principles. Lastly, this article will prove that there should be a difference when dealing with illegally obtained and confidential evidence.

Penyelesaian Sengketa Wanprestasi Secara Alternatif Melewati Badan Arbitrase Nasional Indonesia (BANI)

Peaceful resolution of disputes is the main goal in the modern legal system. One form of peaceful resolution, namely arbitration, is recognized as an effective way to resolve disputes firmly and bindingly. Arbitration is part of Alternative Dispute Resolution (ADR), which includes various methods of resolution outside of court or litigation. In the context of resolving default disputes, the Indonesian National Arbitration Board (BANI) is an efficient option. This research aims to analyze the role and benefits of arbitration in handling default disputes, especially those related to BANI. The research method used is normative legal research by collecting and analyzing secondary data such as laws, regulations, arbitration decisions and related literature. The research results show that the default dispute resolution process through BANI involves several steps, including arbitration selection, trial process, and final decision. The advantages of resolving default disputes through BANI include speed, legal certainty through arbitration awards, and the diversity of arbitrators who can provide different points of view in resolving disputes. Based on research findings, the decision of the Denpasar District Court Class I A Number 3/Pdt.G/2017/PN.Dps is based on Article 3 of Law no. 30 of 1999 concerning Arbitration and Alternative Dispute Resolution. The judge stated that the District Court did not have the authority to decide disputes between two parties who were bound by an arbitration agreement. This shows that if a dispute occurs, the parties must resolve it through deliberation. If deliberations are unsuccessful, the resolution will be handed over to the Indonesian National Arbitration Board (BANI).

Enhancing Legal Certainty for Consumers in Apartment Unit Trade: A Comparative Analysis of Dispute Settlement Agreements in Indonesia and the Netherlands

The purpose of this study is to analyze the dispute settlement binding Trade Agreement (PPJB) unit flats through litigation in Indonesia compared to the Netherlands and to analyze the reconstruction of the law in dispute resolution PPJB in Indonesia to provide legal certainty. The main problem in this paper is that the dispute resolution of the binding Trade Agreement in Indonesia has not provided legal certainty due to court decisions that are difficult to implement due to weak supervision. This research method is normative research with a comparative approach. The urgency of this study is that 276 PPJB disputes in Indonesia are resolved through the courts are difficult to implement. The novelty of this study lies in the researchers ' efforts to reconstruct the law of flats, especially in the implementation of PPJB dispute court decisions. The results showed PPJB dispute settlement unit flats through litigation, experienced obstacles in the application of the judge's ruling, which won the consumer as the injured party. The obstacles to the application of the ruling do not provide legal certainty for consumers. In the Netherlands, the settlement of flat sale and purchase disputes is carried out through non-litigation channels that are more effective in providing legal certainty. Legal reconstruction in PPJB dispute resolution in Indonesia to provide legal certainty that is to accommodate the provisions of supervision for putting the court's decision into action or arbitration decisions in PPJB dispute resolution, as outlined in the provisions of Article 105 of the flats law.

Harmonizing Arbitration: Clarity, Consistency, and Consent in the Application of Ex Aequo Et Bono

This article delves into the intricate dynamics surrounding the application of the ex aequo et bono principle in arbitration, addressing concerns arising from potential procedural challenges and deviations from justice principles amid the escalating popularity of arbitration. The study intricately navigates the legal complexities of this principle, centering on the interpretation of Article 56 of Law 30/1999. Specifically, it scrutinizes whether the article mandates parties' consent for the arbitrator to decide based on ex aequo et bono. Employing a normative legal research approach and utilizing legal hermeneutics with a structuralist focus, the research analyzes the interplay of written agreements, tacit understandings, and standard practices in arbitration. The article underscores the critical role of precise protocols and unequivocal agreements in safeguarding the integrity and effectiveness of the arbitration process. It highlights the paramount need for clarity and consistency in legal provisions, advocating for collaborative efforts between legal authorities and arbitration institutions. This collaboration is essential for aligning statutory provisions and arbitration rules, ultimately fortifying a robust and dependable framework for the equitable resolution of conflicts. In conclusion, the article calls for a harmonized approach to address inconsistencies, enhance the legitimacy of arbitration decisions, and foster trust in the arbitration process. By exploring these challenges, the article contributes to the ongoing discourse of optimizing arbitration as a fair and efficient means of resolving international disputes.

The effects of the socio‐demographic factors on judgement building in arbitration

AbstractThis study examines how the socio‐demographic characteristics of arbitrators and of plaintiffs affect arbitrators' judgement bases for arbitration decisions. Two research questions are tested quantitatively based on a data set of arbitration decisions in the Canadian university sector collected from the website of the Canadian Legal Information Institute. We created two models of independent variables related to the socio‐demographic characteristics of arbitrators and plaintiffs. Multinomial logistic regression is used to examine the possible impacts of these variables on the justifications used by arbitrators to explain their decisions. The results indicate that both models significantly influence how arbitrators justify their arbitral decisions. The following variables significantly contribute to the models: arbitrator's age, arbitrator's professional experience in management, plaintiff's gender, and support of the plaintiff by a collective entity (union or association). Young arbitrators are more likely to use “laws” and those who have professional experience in management tend to cite “evidence” to justify their arbitral decisions. Also, arbitrators are more likely to use “evidence” as their judgement basis for male plaintiffs who are supported by a collective entity. The details of these findings, limitations of the study, and future directions for research are further discussed.

THE EFFECTIVENESS OF ARBITRATION AS AN EXPENSIVE ALTERNATIVE DISPUTE RESOLUTION

<p>Arbitration is an alternative non-litigation dispute resolution which has great demand but it has many weaknesses including the high cost of arbitration and decisions that cannot be executed immediately if registration has not been made at the District Court. Thus, the purpose of the analysis are 1) to analyze the juridical value of arbitration when compared to dispute resolution by litigation and 2) to analyze the effectiveness of arbitration as an effort to settle disputes outside of the court system. This study employed a normative legal methodology. The following are the outcomes of this study: Arbitration is a form of alternative dispute resolution that is widely utilized by individuals, individuals and legal entities, between legal entities, etc. in the context of commercial law. Arbitration is widely chosen because dispute resolution is carried out in a closed, flexible and faster way than litigation and has binding legal force. Arbitration has more value, if the process is carried out correctly, observant in analyzing the problems and fulfilling the elements of the rules regarding the execution of the arbitral award. 2) The arbitration will be legally binding if the parties comply with the arbitration rules in the country where the matter will be executed.. Conclusion: arbitration remains an effective non-litigation dispute resolution option but must pay attention to the arbitration process and provisions so that the parties' awareness will arise to register the results of the arbitration decision and comply with the arbitration law applicable in each country.</p>