Arbitration Model Research Articles

Обязательные арбитражные оговорки в международных спортивных дисциплинарных спорах: особенности и проблемы

Is international arbitration always consensual and based on the autonomy of will and free expression of the parties? The basic theory would undoubtedly answer this question affirmatively. However, in sports arbitration, things are somewhat more complex. Sports disputes can be broadly divided into two major groups: (1) commercial (transfers, sponsorship, contractual disputes with players, etc.) and (2) disciplinary (doping, violation of rules and statutes, failure to fulfill duties by both athletes and sports federations). In this sense, commercial sports disputes do not differ in any way, and they maintain a consensual element and the autonomy of the parties’ will. Meanwhile, the disciplinary sports disputes operate under a “mandatory arbitration model”, implying that without the consent of the parties, the Court of Arbitration for Sport in Lausanne (CAS) or internal bodies of sports federations, performing mandatory pre-judicial regulation, will be the only possible forums for resolving disputes with athletes. Is it right to permit the use of such a mechanism that clearly encroaches on personal autonomy? If so, should the coerced party be treated differently in any way? Why does CAS have exclusive jurisdiction over the majority of sports disputes, rather than, for example, the International Court of Arbitration of the International Chamber of Commerce (ICC)? This article will address all of the above questions.

Adolescents flexibly adapt action selection based on controllability inferences.

From early in life, we encounter both controllable environments, in which our actions can causally influence the reward outcomes we experience, and uncontrollable environments, in which they cannot. Environmental controllability is theoretically proposed to organize our behavior. In controllable contexts, we can learn to proactively select instrumental actions that bring about desired outcomes. In uncontrollable environments, Pavlovian learning enables hard-wired, reflexive reactions to anticipated, motivationally salient events, providing "default" behavioral responses. Previous studies characterizing the balance between Pavlovian and instrumental learning systems across development have yielded divergent findings, with some studies observing heightened expression of Pavlovian learning during adolescence and others observing a reduced influence of Pavlovian learning during this developmental stage. In this study, we aimed to investigate whether a theoretical model of controllability-dependent arbitration between learning systems might explain these seemingly divergent findings in the developmental literature, with the specific hypothesis that adolescents' action selection might be particularly sensitive to environmental controllability. To test this hypothesis, 90 participants, aged 8-27, performed a probabilistic-learning task that enables estimation of Pavlovian influence on instrumental learning, across both controllable and uncontrollable conditions. We fit participants' data with a reinforcement-learning model in which controllability inferences adaptively modulate the dominance of Pavlovian versus instrumental control. Relative to children and adults, adolescents exhibited greater flexibility in calibrating the expression of Pavlovian bias to the degree of environmental controllability. These findings suggest that sensitivity to environmental reward statistics that organize motivated behavior may be heightened during adolescence.

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.

Designing a Multilateral Investment Court for Procedural Justice

Abstract Working Group III of the United Nations Commission on International Trade Law has embarked on a mandate to reform investor-State dispute settlement (ISDS), through identifying a set of concerns that merit multilateral procedural reform. In response, the EU has proposed creating a standing multilateral investment court. Despite the importance of procedural justice theory in domestic legal systems, its value as a resource in international dispute resolution is under-recognized. This article focuses on procedural justice through the literature on the social psychology of justice, as offering an empirically-based theoretical foundation that helps identify key elements and options in designing investment adjudication. Within ISDS reform, the authors focus on necessary innovations in independence and impartiality, transparency, participation, and correction of error, the key pillars of procedural justice research. The EU proposal suggests substituting a more traditional judicial model of dispute resolution for the current and problematic arbitral model, which aligns to a greater degree with the principles of procedural justice.

An Asynchronous Federated Learning Arbitration Model for Low-Rate DDoS Attack Detection

Low-rate Distributed Denial of Service (LDDoS) attacks have been one of the most notorious network security threats, which use periodic slight multi-variate time series pulse flows to degrade network quality. Limited by the poor data in a single client, a powerful and satisfactory LDDoS attack detection model is hard to be trained. Federated Learning (FL) is a promising paradigm offering joint learning through multiple clients. We propose an asynchronous federated learning arbitration framework based on bidirectional LSTM (bi-LSTM) and attention mechanism (AsyncFL-bLAM). In the AsyncFL-bLAM, the leader node election algorithm is proposed for constructing the framework of asynchronous federated learning. The proposed bLAM model composed of feature extracter and arbitrator takes on the responsibility of LDDoS detection locally. Furthermore, the novel AsyncFL framework helps to upload and aggregate the bLAM models’ parameters asynchronously between leader node and client nodes. Experimental results show that the AsyncFL-bLAM outperforms the state-of-the-art models in accuracy, and reduces the overall communication rounds.

Риски «карманного» арбитража ad hoc : промежуточные итоги реформы третейского разбирательства в России

The article deals with the arbitration court formed to resolve a specific dispute. One-party court, or the so-called "pocket arbitration", is a situation where arbitrators cannot comply with the principle of impartiality due to the fact that the arbitral tribunal is a structural unit of one of the parties or part of the same holding company. As a result of the reform of arbitration proceedings in Russia, the niche of "pocket" permanent arbitration courts has been filled with situational arbitration, where the party with a stronger negotiating position determine the arbitrator and the rules. This phenomenon is becoming popular in disputes between microfinance organizations and borrowers, which, given the particular sensitivity of this area, requires public law intervention. The freedom of the parties to the contract is limited in order to prevent infringement of the rights and legitimate interests of the economically weaker party. Arbitration model is liberal as it is based on the autonomy of will. Arbitration ad hoc has its advantages in unique disputes where the parties are ready to determine the figure of the arbitrator and the rules for considering the dispute. However, this institution demonstrates signs of distortion, which means it needs restrictions. The existing regulatory restrictions and clarifications were defined by the Plenum of the Supreme Court of the Russian Federation, but they proved ineffective in practice. The author proposes to ban situational arbitration in case of loan agreements with microfinance organizations.

ODR arbitration for secured transactions in Colombia

Abstract The overall view of the registration and enforcement of secured transactions in Colombia has evolved since the national government adopted the electronic arbitration model rules. This kind of arbitration has facilitated the enforcement of secured transactions without resorting to ordinary courts, saving costs and time in enforcement proceedings. This article explains the step-by-step process that the Colombian government had to go through to create and implement an online dispute resolution system dedicated to secured transactions. The article gives an account of the international standards and models that provide the general guide to create a secured transactions system, along with explaining the Colombian regulatory framework that allowed the creation of the secured transactions system, and ending with the enforcement strategies of online arbitration in Colombian secured transactions.

Сучасні моделі монетизації бізнесу в умовах цифровізації економіки

The purpose of the article is to study the models of forming of business income (monetization models) as a subsystem component of the overall business model of the company through a logical relationship: «business monetization model – business model of the company – global business ecosystem» to substantiate the most effective models in modern conditions of strengthening digitalization of economic development. The article visualizes the mechanism for forming the e-business strategy «from data analysis to strategy», that is, generalized, structured and in a certain way systematized data be of value – i. e., the knowledge that a company can use in developing its business strategy. The methodology for forming a business model of a company is analyzed on the basis of 4 key components: «Who? – What? – How? – Why?». The article provides a detailed analysis of monetization models for digital business (online format) in terms of their implementation, as well as generalized characterizations of each model; the key advantages and disadvantages of their implementation are distinguished. Attention is paid to the following monetization models: transactional income model (or production model of business monetization); markup model; advertising model; licensing model; arbitration model; commission (partnership/affiliate) monetization model; model of open innovation; model of «income from the sale of services»; subscription model (Freemium/Premium), as well as to the innovative and creative business models of companies and, in particular, their monetization models such as: Experience Selling model; model of additional services (Add-on Model); Aikido Model; Flat Rate Model, and Razor & Blade Model.

Dispute settlement of cross-border mergers and acquisitions by arbitration in Viet Nam

Cross-border mergers and acquisitions transactions have increased dramatically around the world over the past several decades and have become one of the most important types of commercial transactions. In the process of performing cross-border mergers and acquisitions transactions, disputes will occur with certain characteristics at different stages. As a result, when a dispute occurs, the parties must use various dispute settlement methods such as negotiation, conciliation, court, arbitration. Combining the aforementioned ways is a prioritized choice for having an adequate mergers and acquisitions dispute resolution mechanism by leveraging the benefits while also eliminating the limitations of given methods. This article will analyze cross-border mergers and acquisitions disputes and some issues in dispute resolution by arbitration, such as joinder and consolidation procedure, expert participation and confidentiality in arbitration. Thereby, the Arbitration - Mediation - Arbitration (Arb-Med-Arb) model is proposed to be applied in resolving cross-border mergers and acquisitions disputes in Vietnam.

Utilizing the Institutional Arbitration and Community Mediation Model of Singapore, South Korea, Malaysia and Philippines for Bangladesh

Utilizing the Institutional Arbitration and Community Mediation Model of Singapore, South Korea, Malaysia and Philippines for Bangladesh

Signaling in the “Before” Model of Final Offer Arbitration

Abstract We develop a signaling model of final offer arbitration (FOA) in which the informed party makes the final settlement demand to the uninformed party. In FOA, each party submits a proposal to an arbitrator and if no agreement is reached, the arbitrator must select one of the two submitted proposals. We analyze a “before” model of FOA in which all settlement activity occurs prior to the exchange of proposals. We characterize the pure strategy separating, equilibrium associated with this game. Relative to a model of conventional arbitration (CA), the pure strategy separating equilibrium is associated with a higher dispute rate because weak player types have an enhanced incentive to bluff in this setting. This result continues to hold in semi-pooling equilibria. Thus our model is consistent with a higher dispute rate in FOA compared to CA. We also compare the incentive to engage in costly voluntary disclosure and costly discovery (JEL K4, C7, J52).

ONLINE DISPUTE RESOLUTION (ODR) AS AN ALTERNATIVE FOR ELECTRONIC TRANSACTION DISPUTE SETTLEMENT

The development of communication and information technology has an impact on all aspects of human life. Technology has changed the business world from traditional trading patterns to a more modern trading system, namely an online trading system known as electronic commerce (e-commerce). Electronic commerce/electronic-commerce/e-commerce is the distribution, sale, purchase, marketing of goods and services that rely on electronic systems, such as the internet, television, or other computer networks. The agreement is also made online, basically, an online sale and purchase agreement (e-commerce) is the same as a general sale and purchase agreement, which requires an agreement between the seller and the buyer regarding the goods or services being traded and the price for the goods or services. Alternative Dispute Resolution (ADR) is dispute resolution out of court. that the parties to the dispute by mutual agreement are free to choose the forms and procedures contained in the alternative dispute resolution and will be applied in dispute resolution. Agreements made online are expected to be completed online as well. For this reason, alternative dispute resolution is sought which is expected to facilitate the dispute resolution process with online transactions. One of the breakthroughs is by using an online arbitration model known as Online Dispute Resolution (ODR) so that the disputing parties can settle wherever they are.The method used is through normative legal research, which is a scientific research procedure to find the truth based on scientific logic from the normative side, carried out to produce arguments, theories, or new concepts as prescriptions in solving problems at hand. The nature of this research is descriptive-analytical. In the future, this discussion will open a new way to facilitate the Indonesian people, especially those seeking legal certainty, in resolving disputes using ODR

Discovery and Disclosure in a Signaling Model of Final-Offer Arbitration

We develop a signaling model of final-offer arbitration (FOA) in which the informed party makes the final settlement demand to the uninformed party. In FOA, each party submits a proposal to an arbitrator, and if no agreement is reached the arbitrator must select one of the two submitted proposals. In the context of this model, we analyze costly voluntary disclosure and costly discovery. In standard litigation models, costly disclosure may occur in the signaling game, but costly discovery never takes place. By contrast, under FOA if information transmission takes place prior to the submission of proposals to the arbitrator, costly discovery may take place. However, the incentive to engage in a voluntary disclosure is weakened relative to a standard litigation model. If information transmission takes place after the submission of proposals to the arbitrator, then the results are analogous to those found in a standard litigation model.

The Nature and Constitutionality of Statutorily-Imposed (Non-Contractual) Arbitration in Ghana

AbstractGhanaian law contains a number of statutes that broadly provide that certain disputes shall be settled by arbitration. This compulsory approach to arbitration departs significantly from the consent-based model of arbitration. This article considers the legal framework for statutory arbitration in Ghana. It examines the origins of statutory arbitration, documents some of the statutes that provide for statutory arbitration and assesses the rationale for statutory arbitration. The article also examines the issue of consent in statutory arbitration, the procedural aspects of statutory arbitration, as well as the constitutionality of this form of arbitration.

Going Dark

Going Dark

Transnational Islamic Finance Disputes: Towards a Convergence with English Contract Law and International Arbitration

ABSTRACT While Islamic finance is premised on wholly antithetical rules and notions as opposed to traditional Western finance, the resolution of pertinent disputes has been structured along the lines of standard commercial arbitration. Islam has always favoured arbitration and mediation and in fact promoted these in very much liberal terms. As a result, there has never been a need to adapt a sui generis Islamic dimension to Islamic finance, because clearly Western and Islamic notions of arbitration largely coincide. In recent years there have been some attempts to limit Islamic finance arbitration within a narrow understanding of Islamic ethics, despite the fact that it has become transnational in character and Islamic ethics are in any event inbuilt in the architecture of Islamic finance instruments, which arbitrators can only avoid at their peril. It is no wonder that Muslim end users generally prefer to resolve disputes arising from Islamic finance transactions in conventional arbitral institutions, while at the same time choosing English law to govern their agreement, typically concurrently with Islamic law or other laws. As a result, Islamic finance has equally attracted non-Muslim end users. The English High Court has not only developed a particular expertise in Islamic finance law but has, in addition, demonstrated how Islamic and secular law are generally compatible and complementary (with some notable exceptions) in construing transnational Islamic finance. At the same time, institutions and rules in the Muslim world that depart from the global arbitration paradigm are fast falling into desuetude. In light of these findings, it is argued that a sui generis Islamic finance arbitration model is not only disfavoured by end users as being out of touch with business reality but is inconsistent with the fundamental tenets of the Islamic law of arbitration.

The emergence of coercive federal Australian labour law, 1901–2020

Over the past two decades, industrial relations scholarship has observed a trend towards an increasingly punitive industrial environment along with the ‘re-regulation’ of labour law. Absent from much of this literature, however, has been an empirical and historical measurement or comparison of the scale and quality of this systemic change. By surveying coercive and penal federal industrial legislation over the period 1901–2020, this study shows empirically that over the last 40 years, there has been a steep increase in the amount of coercive federal labour legislation in Australia. It further measures and compares the volume of coercive labour legislation enacted specifically against ‘labour’ and ‘capital’ or both throughout the same period (1901–2020). Analysis reveals a correlation between a high volume of coercive labour legislation with low levels of trade union power and organisation. Argued here is that coercive labour legislation has been crucial to transitioning from a liberal conciliation and arbitration model of Australian industrial relations towards a neoliberal framework of employment legislation. In the former, regulation was more collective, informal and egalitarian (embodied by the sociological concept of ‘associative democracy’). Under a neoliberal framework, regulation is now more individualised, technical, punitive and rarely enforced, resulting in less equal material outcomes.

Signaling in the ‘Before’ Model of Final Offer Arbitration

We develop a signaling model of final offer arbitration (FOA) in which the informed party makes the final settlement demand to the uninformed party. In FOA, each party submits a proposal to an arbitrator and if no agreement is reached, the arbitrator must select one of the two submitted proposals. We analyze a “before” model of FOA in which all settlement activity occurs prior to the exchange of proposals. We characterize the pure strategy separating, equilibrium associated with this game. Relative to a model of conventional arbitration (CA), the pure strategy separating equilibrium is associated with a higher dispute rate because weak player types have an enhanced incentive to bluff in this setting. This result continues to hold in semi-pooling equilibria. Thus our model is consistent with a higher dispute rate in FOA compared to CA. Results on the incentive to engage in costly voluntary disclosure are mixed across the two models. In contrast with CA, costly discovery can occur in this model of FOA. The analysis of out of equilibrium beliefs and actions is considerably more complex than in the standard litigation model.

Recepcija rimskog prava na glagoljici

Zapisnik Petra Lazarića, domaćega bilježnika i kanonika potječe iz 1621. iz Mošćenica. U njemu je na glagoljičkom pismu dokumentirano rješavanje privatnoga diobenog spora među sumještanima u arbitraži. Premda pisana glagoljicom i na hrvatskom jeziku, ta isprava obuhvaća pohrvaćeno latinsko (i manje talijansko) pravnotehničko nazivlje te bilježi niz načela, koncepata i instituta koji su u izvansudskom postupku rješavanja spora dosljedno i pravilno primijenjeni po uzoru na rimsko pravo. Svi bitni pravni elementi ovoga diplomatičkog izvora odražavaju snažne odjeke tradicije rimskoga prava i ius commune. Autor u dva rada analizira sve relevantne institute primijenjene u arbitraži i postupovne i materijalnopravne, povezujući ih s rimskim i kanonskim pravnim uzorima. Ovaj izvor povezuje i s druga dva pravna svjedočanstva, koja su nastala u Mošćenicama u prvoj polovici 17. stoljeća, a koji također odražavaju snažne utjecaje rimske pravne tradicije: Mošćenički statut iz 1637. i lovransko-mošćeničko razgraničenje iz 1646.

Assessing the CJEU’S Decisions in Achmea and Opinion 1/17 in Light of the proposed Multilateral Investment Court – Winner of the Essay Competition 2020

This article argues that the CJEU’S recent jurisprudence on the principle of autonomy has been carefully crafted to lend support to the European Commission’s efforts to establish a Multilateral Investment Court. The CJEU has historically approached international courts and tribunals with caution. However, the Multilateral Investment Court is unlike other such bodies, because it is designed to supplant existing models of investment arbitration which the CJEU disdains. Moreover, certain features of the Multilateral Investment Court would be likely to make it especially attractive to the CJEU – namely its probable applicable law, judicial structure, and the control the CJEU could exert upon it. The surprising and sudden shift in tone between the CJEU’S recent decisions in Achmea and Opinion 1/17 becomes readily explicable when the two cases are viewed in light of the proposed Multilateral Investment Court. On analysis, the CJEU’S apparent support for the Multilateral Investment Court is best understood as the logical continuation of its longstanding jurisprudence on the principle of autonomy.