Arbitral Institutions Research Articles

The legal construction for the International Chamber of Commerce arbitration in resolving corporate conflict

The International Chamber of Commerce (ICC) is a private international non-governmental organization that provides its services to the international trade sectors (Wetter, 1985). Further, the ICC supervises its arm known as the International Court of Arbitration, which is an independent arbitral institution, affiliated with the ICC, which administers arbitration proceedings following the arbitration rules of the ICC but without adjudication of disputes as the adjudication of disputes is the jurisdiction of the arbitral tribunal. Yet, we have two problematic issues that the research treats: the confusion in the nomenclature and competencies between the components and units of the ICC during its practice of arbitration to settle corporate conflicts; while the second issue is that the basic elements of the arbitration process at the ICC based on its arbitration rules is not clear. Hence, the research approached these two issues in a direct presentation of the reality of arbitration at the ICC. The research emphasized the new modifications of the ICC arbitration system that resolve both above problematic issues.

PEMAKNAAN DAN IMPLEMENTASI PRINSIP EX AEQUO ET BONO DALAM PENYELESAIAN SENGKETA EKONOMI SYARIAH MELALUI BASYARNAS

The dispute resolution mechanism in BASYARNAS, an Islamic economics arbitration institution, is based on the principle of ex aequo et bonowhich still raises questions regarding its interpretation and implementation. This research aims to comprehend the meaning, limitations, and implementation of the ex aequo et bono principle in the decisions of BASYARNAS. This study uses a normative legal research method with statutory, conceptual, and case study approaches. The findings show that the interpretation of the ex aequo et bono principle correlates with Sharia principles in terms of rules and principles, prohibition of ultra petita, and arbitrator's capability. Meanwhile, the limitations of the application of ex aequo et bono are closely related to the consensual principle of the parties, primary petitum demands, Sharia principles, pacta sunt servanda, and the principle of good faith. These concepts will be taken into account in reviewing the nullity of a contract and its consequences thereafteer. In addition, the implementation, as seen in the Decision of BASYARNAS Case No. 01/Year 2010/BASYARNAS, shows that fair and propriety assessment of the panel does not solely arise from the phrase ex aequo et bono. The decision also negates the elements of the agreement and the good faith of the parties as a basis for continuing an existing contract.

HAKAMLIK SUDINING HAL QILUV QARORI TUSHUNCHASI VA HUQUQIY AHAMIYATI

"Arbitration courts, in our opinion, are one of the main institutions of civil society. A modern legal state cannot exist and function without a strong civil society. The experience of developed Western countries shows that citizens and entrepreneurs have a very positive attitude towards arbitration courts, since arbitration processes are designed to quickly and efficiently resolve disputes and other problems in civil and economic activities. Therefore, in the context of the further deepening of democratic reforms and the formation of civil society in our country, it is extremely necessary to widely develop the institution of arbitration. At the same time, it should be noted that today, in addition to competent courts, various problems arise when considering a number of cases of civil and economic disputes by arbitration courts. This article, based on an analysis of foreign experience, examines the issue of the concept and legal significance of an arbitration award. The interaction of the arbitration court with the competent (state) courts, its procedure and shortcomings in focusing on the execution of the decision of the people has also been studied. In accordance with this, the author’s definition of the concept of resolution will be developed, as well as proposals and recommendations for our national legislation regarding the application of the mediation procedure. "

Analysis of Sharia Pawn Dispute Resolution in Indonesia in Terms of the Concept of Maqashid Al-Syari'ah

Sharia pawn institutions continue to grow marked by the increasing number of financing and customers, so the potential for disputes between rahin and murtahin or with other parties is also increasing. This research aims to analyze the forms of sharia pawn disputes in Indonesia along with the rules and practices of its settlement efforts. This research also intends to analyze the efforts to resolve sharia pawn disputes in Indonesia from the perspective of maqashid al-syari'ah. The research method used is qualitative, with the research subject being PT Pegadaian Syari'ah Unit. The results reveal that the forms of sharia pawn disputes in Indonesia are disputes caused by differences in perception and understanding of the contract, damage/loss of the pawn object, differences in the estimated value of the pawn object, and customer rejection of the auction of the pawned goods. The settlement of the dispute goes through three stages, namely consensus deliberation as the main effort, through the arbitration institution, namely Basyarnas, and the last effort through the Religious Court. The settlement of sharia pawn disputes according to the maqashid al-syari'ah perspective is by basing these efforts on the principle of good faith so as to avoid arbitrary behavior and produce a settlement that brings good to all parties

International Patent Law Conflicts With the Right of Access to Medicines and Healthcare: Key Aspects

This article is dedicated to the legal conflicts between international patent law and the right ofaccess to medicines and healthcare. This article discusses the problem above under the light ofthe framework of the international agreements, mainly WTO Agreement on Trade-RelatedAspects of Intellectual Property Rights (TRIPS Agreement) and Doha Declaration on the TRIPSagreement and public health. As we know, patents give exclusive rights to the inventors to usetheir innovations for a long period of time. This limits the ability of public to get easy access tomedications, consequently to indispensable healthcare. It is undoubtable that the quality of lifeand the healthcare of the public is an absolute priority. On the contrary, the expropriation ofpatent rights, inadequate compensation of damages for issuing the compulsory licensing mayhave irreversible consequences for the states. Foreign investor may file claims against thegovernmental authorities to ad hoc or permanent arbitral institutions.

THE IMPLEMENTATION OF INTELLECTUAL PROPERTY DISPUTE RESOLUTION THROUGH MEDIATION & ARBITRATION

This article aims at determining, describing, and analyzing the application of intellectual property rights through mediation & arbitration from the perspective of Indonesian law and its practice in the Arbitration Regulations of the Indonesian National Arbitration Board. Intellectual Property dispute resolution among the disputing parties by mediation and arbitration (out-of-state court settlement) has not been effective because of limited and lack of socialization from the Government or mediation and arbitration institution. The resolution of IPR disputes has not been effective, this is evident from the results of discussions with the DJKI and the West Java Kanwilkumham, which are still few IPR cases that have been registered to be resolved. Likewise, very few IPR cases have been submitted to the Dispute Resolution Institution.

Multiple proceedings and abuse of procedure on BRI disputes

Abstract This article argues that specific mechanisms and best practices should be adopted by different players in the Belt and Road Initiative (BRI) dispute resolution ecosystem to mitigate the risks of multiple proceedings and abuse of procedure. Specifically, (i) states should enhance their multilateral and bilateral treaty practices; (ii) arbitral institutions should enhance their arbitral rules as well as cooperate with each other; and (iii) states should direct more efforts to dispute prevention and amicable dispute settlement. This article will explain what these best practices and mechanisms are. The ‘The BRI’ section will provide a general background on the nature and architecture of the BRI. The ‘Problem of multiple proceedings and abuse of procedure’ section will discuss the notion of multiple proceedings and abuse of procedure. The ‘Potential of multiple, parallel proceedings and abuse of procedure on BRI projects’ section will focus on possible multiple proceedings and abuse of procedure on BRI disputes. The ‘Possible solutions and recommendations’ section will identify possible solutions and provide recommendations. Conclusions section will draw final conclusions.

Joinder Mechanism in International Commercial Arbitration: A Trend in the Digital Age?

AbstractIn recent years, the phenomenal development and application of technology have given rise to new means and forms of international commercial dispute resolution. In particular, in the post-COVID era, the demand for efficient, flexible and cost-saving dispute resolution methods has increased significantly. Therefore, technology-enabled digital methods such as online arbitration, have become more widely accepted and applied. At the same time, globalisation has turned international commercial disputes increasingly complex, which often involves the interests of third parties. According to data released by arbitral institutes, about 40% of arbitration cases worldwide involve more than two parties. As there is an increasing number of multi-party arbitration cases, multi-party dispute resolution mechanisms have played a more prominent role in such circumstances. Digitalisation and globalisation have facilitated multi-party projects, but they have also inevitably increased risks in multi-party disputes. For instance, arbitration is a business-friendly process, but the consensual nature of arbitration does not easily accommodate multi-party disputes. Although digitalisation in the conduction of arbitrations has made it more efficient and increased the access of multi-party commercial disputes to resolution, it still has not helped arbitration overcome the basis of party’s consent. This paper will examine the joinder mechanism in international commercial arbitration, focusing on its interaction with traditional theories and principles of arbitration, the joinder provisions in the rules of several leading arbitral institutions (e.g. ICC, LCIA, HKIAC and SCAI), and the value of the joinder mechanism in the context of digitalisation.

Challenging Orthodoxy: State Immunity from Court Supervisory Jurisdiction in Investor-State Disputes?

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

LEGAL REVIEW RELATING TO CANCELLATION OF ARBITRATION AWARDS THAT ARE ALREADY POWERFUL (INKRACHT) AND FINAL RELATED TO ARBITRATION LAW NO. 30 OF 1999 CONCERNING ARBITRATION CASE STUDY PT. KRAKATAU POSCO AGAINST INDONESIAN NATIONAL ARBITRATION BOARD, DKK AT SERANG STATE COURT

In this thesis, the author discusses the determination of several deviations related to the cancellation of the Arbitration Award as regulated in Law Number 30 of 1999 concerning Arbitration and Alternative Dispute Resolution. In this case, the parties and the judges themselves tend to ignore the existence of the Arbitration Institution, the agreement on the absence of an Arbitration Clause is considered a fake document and a deception by the Arbitration Applicant. Krakatau Posco (Arbitration Applicant) against the National Arbitration Board (Arbitration Respondent I) and PT. Krakatau Enggering (Respondent of Arbitration II) in Decision Number 105/Pdt.Arbt/2018/PN.Srg in Serang District Court Class IA. Arbitration clauses are carried out when the contract agreement is about to start between the two parties to avoid disputes before or after in the event of a dispute both parties must file the dispute at the Indonesian National Arbitration Board (BANI). The problems discussed in this thesis are regarding the Determination of Number 105/Pdt.Arbt/2018/PN.Srg. dated September 21, 2018, the judge considered that the absence of the Arbitration Clause was considered a false document and a ruse. The research method used in this thesis is normative juridical through a law approach. The sources used are in the form of secondary legal materials with library techniques that are analyzed qualitatively. The result of this study is the cancellation of the Arbitration decision which was granted by the Panel of Judges at the Serang District Court Class IA based on the fact that there was no Arbitration Clause agreement between the two parties wheKeywords: Arbitration Cancellation, Arbitration Clause

"Przymusowy arbitraż" - ambiwalentna konstrukcja czy odpowiedź na potrzeby złożonej rzeczywistości?

The aim of the article is to present the most important moments in a development of the institution of the compulsory arbitration, for which the starting point was and still is a voluntary arbitration. For this purpose the selected features of the institution of arbitration are discussed - the features which have appeared in the historical development of this institution, in order to discuss in detail the compulsory arbitration as a non-obvious exception of this institution, in particular on example of the Polish legal solutions concerning consumers and the clients of airlines. The introduction of this sort of arbitration has been decided by the legislator, probably in connection with the need to ensure a "better" protection of particular goods. The authors answer to the questions about the role of compulsory arbitration in the 21st century, especially in times of the current institutional crisis. Is it, in the opinion of the law-making authority, a kind of remedy for the weakness of traditional courtsand even the amicable proceedings? Or: Is it merely a more efficient way of an amical way of resolving conflicts? They ask about the purpose of the compulsory arbitration - a way of proceeding which "forced" the parties to seek of a resolution of a dispute in a certain, way as well as the very legal meaning of thus "coercion" of the parties to certain actions.

XАLQАRО TIJОRАT АRBITRАJIDА MАXFIYLIK TАMОYILINI QО‘LLАSHNING HUQUQIY MАSАLАLАRI

In this article, the authors describes the concept of the principle of confidentiality in international commercial arbitration, its history, its legal description, comparative legal analysis, and issues related to the practical aspects of the application of these cases. In addition, it analyzes the scope of documents and persons related to the principles of confidentiality and inviolability and identifies the problems of maintaining confidentiality in the practice of international commercial arbitration. It pays special attention to the interrelationship between the principle of privacy and the interests of the state. Also, it gives a number of proposals aimed at eliminating existing shortcomings in the legislation on these cases. The purpose of the research work is to identify the participants in the arbitration proceedings, including exploring the scope of confidentiality that is binding on the parties and their representatives, the arbitral tribunal, arbitral institutions, and third parties such as witnesses and experts. The presumption of confidentiality exists in international commercial arbitration. However, case law is inconsistent regarding the purpose of arbitration and its interaction with confidentiality. This study focuses on the concept and function of confidentiality in relation to international commercial arbitration. The subject of the research work is the legal significance of the application of the principle of confidentiality in international commercial arbitration in the arbitration process, as well as international conventions on international commercial arbitration, national and foreign experience, judicial practice, theoretical knowledge, research, conceptual approaches, problems, and the scientific and theoretical views used in their study.

The Validity of Arbitration Agreements Providing for Arbitration in Mainland China Administered by Overseas Arbitration Institutions

With China increasingly opening up in relation to trade, the number of overseas arbitration institutions practicing in China’s free trade zones is expected to rise. At the same time, however, the validity of arbitration agreements remains uncertain under Chinese arbitration law, with arbitration clauses which tend to permit administration only by domestic arbitration commissions. Chinese arbitration legislation and recent cases demonstrate that this issue can be attributed to difficulties identifying a designated arbitration commission or tribunal, as well as unclear standards to determine the nationality of the arbitration award. Considering relevant decisions of Chinese courts over the past twenty years, this article concludes that the attitude of the Chinese judiciary towards arbitration by overseas arbitration institutions in China has shifted from conservative to more open. However, a number of issues, including confusion around the arbitration jurisdiction (caused by absence of a requirement to specify the arbitration institution) make this area a difficult one for practitioners. overseas arbitration institutions, the validity of arbitration agreement, free trade zone, the seat of arbitration, the New York Convention

Traditional Arbitration Institutions and Conflict Resolution Approaches in Nigeria: The Efficiency and Rhetorical Fallacy

Before the advent of colonialism and its attendant degradation of African culture, Africans have had a concrete knowledge about what conflicts are, what causes conflicts and how conflicts are resolved. Prior to western education, the Africans have developed a robust knowledge about the dynamics of conflicts and they have had institutionalized means of resolving their conflicts. In the present dispensation, however, the phrase ‘Traditional Arbitration Institutions’ has been given prejudiced responses by the westerners who dominated the study of peace with their scholarly works and claimed a monopolized knowledge of peace. Premised on this background, this paper focuses attention on exposing the systematic knowledge of Africans about disputes and conflicts resolution, using Nigeria as area of study; the paper discusses the conceptual meaning of Traditional Arbitration Institutions (TAI) and conflict resolution; the study seeks to identify and examine the roles of Traditional Arbitration Institutions in promotion of conflict resolution in Nigeria society. In addition, it examines various Traditional Arbitration Institutions (TAI) conflict resolutions mechanism and approaches put in place in resolving disputes and conflicts in Nigeria. The research methodology employed in the study is mixed methods which involves qualitative and quantitative research technique. This work adopted Traditional Arbitration Theory. The paper observes that there is a need for engaging Traditional Arbitration Institutions in resolving community and industrial based disputes and separatist’s agitation in Nigeria. The paper concludes by recommending various Traditional Arbitration strategies that can be adopted to complement existing efforts of promoting peace and stability in Africa.

Alternative Dispute System in India: An overview

Alternative Dispute Resolution is a kind of technique which acts as a means to resolve the issues between two parties outside the ordinary law courts. The current Judicial System is extremely expensive and delaying. The parties to a dispute have to wait for Justice for years. This lengthy and expensive process of litigation has reduced the faith of common people in the Judicial System being followed by the Courts. Alternative remedies provide cheap and speedy Justice and that is the reason that ADR mechanism is being preferred by the disputing parties for the resolution of their disputes. The approach of judges, lawyers and parties all over the world is changing in favour of adoption of ADR instead of Court litigation. Arbitral institutions provide ADR services for quicker, less costly and consensual resolution of civil disputes outside the crowded court system. ADR promotes communication between the parties and enables them to solve their actual concerns behind the disputes. Many disputes like consumer complaints, family disputes, construction disputes, business disputes can be effectively resolved through ADR. It can be used in almost every kind of dispute which can be filed in a court as a civil dispute. When a civil suit is filed in a court of law, a formal process takes place, which is operated by advocates and managed by the court and the parties are then left to wait for the orders of the Court. The outcome of the case is uncertain. After the decision of the case there can be an appeal or other proceedings which may delay the implementation of the decision of the case.

The Comparative of Arbitration Performance and Public Court on Settlement of Civil Disputes in Indonesia

The purpose of this study is to describe the comparison of dispute resolution mechanisms by arbitration and dispute resolution through general courts. This study uses normative juridical, referring to legal norms which include laws and regulations, court decisions and applicable legal rules. Furthermore, this research will answer legal issues regarding dispute resolution through arbitration. Normative legal research is "legal research conducted by examining literature (secondary data). The results of the study indicate that there are two choices of arbitral institutions to resolve disputes, namely arbitration and general courts. Comparison of dispute resolution mechanisms between arbitration and institutional arbitration is that arbitration has the freedom of the parties to determine the arbitrator, guarantees the confidentiality of the parties because dispute resolution is carried out in private, the parties can determine the place of arbitration, choice of law in dispute resolution, and the dispute resolution process is faster, namely can be completed in no more than 180 days. While settlement through a general court requires a relatively long time, is open to the public, and is confrontational in nature, all decisions are final and binding. However, for arbitration, the recognition and implementation of the decision must still be registered with the district court. Weaknesses of arbitration are the emergence of suspicion of each party about the closeness of the arbitrator, given the current sophistication of technology, so that the number of dispute resolution through arbitration in Indonesia is very small. Society prefers litigation over non-litigation.
 
 Received: 21 April 2023 / Accepted: 09 August 2023 / Published: 5 September 2023

Institutional Arbitration: India’s Attempt to Transpire as an International Hub of Arbitration in Southeast Asia

International arbitration has flourished as a private adjudicatory forum and is consistently evolving because of its versatile nature, assimilating the needs of modern arbitration users. Arbitration institutes have bent over backward for the development of international arbitration. All jurisdictions, through sporadic amendments, upgrade their curial law in alignment with the current global arbitration norms. The leading jurisdictions of Southeast Asia, specifically Singapore, Malaysia, and Hong Kong, through timely updates in their curial law and atonement of their premier arbitration institute’s policies incorporating the recent trends, continue to grow and rival each other as regional players in international arbitration. Keeping in mind India’s position in the global market, it is about time that India reserves its name among the leading arbitration hubs in Southeast Asia. Upon consideration of the trifecta of the curial law, the role of the premier arbitral institution, and the deference of the judiciary of a leading arbitration hub, the author through critical analysis, coherent reasoning, and statistical interpretation of data attempts to unveil the following questions raised. Firstly, whether India’s endeavour to strengthen and reinforce institutional arbitration in India vide the Amendment Act, 2019 would derive the desired result. Secondly, whether India’s attempt to become an international hub of arbitration that could rival Singapore, Hong Kong, and Malaysian arbitration institutes would be successful. Consequently, India’s attempt to march alongside the leading arbitral forces in Southeast Asia is like a lucid dream having the potential of manifestation.

Arbitration in Agreement Dispute (Perspective of Law Number 30 Year 1999)

Background. In business relations between the parties in the development does not rule out the possibility of problems that require solutions. Purpose. This research aims to find out the process of resolving civil disputes through the Aribitrase court based on Law Number 30 of 1999 Method. The method in this research uses a normative juridical approach, which means that a study is carried out based on laws and judicial decisions that have permanent legal force. In the collection of legal materials using two ways, namely literature research by reviewing the literature and opinions of legal experts related to research problems. Results. The results of the research can be concluded that the arbitration agreement cannot stand and cannot bind the parties if the arbitration agreement does not coincide with the main agreement, which will be handled by the arbitration agreement is regarding disputes arising from the main agreement, so a civil dispute can be submitted for resolution through the arbitration court if it meets the subjective and objective requirements in the Basic Agreement (JOC). the parties agree that if there is a civil dispute it will be resolved through arbitration. Conclusion. The Arbitration institution has a binding nature on the parties and is final in the sense that the parties cannot appeal to the general court after the Arbitration decision.

Business Dispute Resolution: Insight from Indonesia and Saudi Arabia

In legal disputes, the crucial aspect lies in the execution of a decision. A decision holds no value if it cannot be effectively enforced, even if it possesses permanent legal force. To settle civil cases, two prominent institutions are employed: the court and arbitration. In the context of international business agreements, parties turn to international arbitration as a means of resolving disputes, employing neutral third parties. This paper delves into the process of international arbitration, particularly focusing on its application within the business sector. Various arbitration clauses in international business agreements establish international arbitration, with the objective of impartially addressing disputes between parties involved. A notable institution that facilitates such resolution is the Saudi Center for Commercial Arbitration (SCCA) in Saudi Arabia. However, the effectiveness of arbitration rests on the implementation of arbitration awards, which is influenced by the type of arbitration undertaken, whether national or international. Hence, this paper aims to draw a comparative analysis between the Indonesian National Arbitration Board (BANI) and the Saudi Center for Commercial Arbitration (SCCA), examining the legal basis employed and the processes involved in resolving arbitration disputes. By understanding the contrasting practices of these arbitration institutions, stakeholders can gain insights into optimizing dispute resolution mechanisms. The study holds practical significance for businesses and individuals engaged in international trade, emphasizing the importance of selecting the appropriate arbitration institution to ensure enforceability and expeditious resolution of disputes. Ultimately, the findings of this research contribute to fostering a more efficient and reliable international arbitration framework.

Dispute Resolution in Business Sector: Comparing Indonesia and Singapore Arbitration Model

Dispute resolution within the business sector can be accomplished through either national arbitration institutions or international arbitration institutions. International arbitration serves as a process to settle civil disputes using a neutral third party, particularly in the context of business-related conflicts arising between parties engaged in international business agreements. Such arbitration is often specified through arbitration clauses included in these international business agreements, which are mutually agreed upon by the involved parties. One example of an international arbitration institution that specializes in resolving civil disputes, particularly those within the business sector, is the Singapore International Arbitration Center (SIAC) located in Singapore. The implementation of arbitration awards depends on the type of arbitration being conducted, whether it is a national arbitration award or an international arbitration award. During the preparation of this paper, the author utilized a normative-juridical research method, which involves relying on legal library sources and secondary legal materials to address existing legal issues. This paper aims to compare the legal foundations and the arbitration dispute resolution processes employed by the Indonesian National Arbitration Board (BANI) and the Singapore International Arbitration Center (SIAC). The research findings reveal that the legal basis for arbitration dispute resolution utilized by the Indonesian National Arbitration Board (BANI) differs from that employed by the Singapore International Arbitration Center (SIAC). Nevertheless, the processes and procedures for resolving arbitration disputes conducted by both institutions demonstrate notable similarities.