Arbitration Panel Research Articles

Analisis Sengketa Wanprestasi dan Ganti Rugi dalam Kontrak Pengadaan Jasa Ditinjau dari Kitab Undang-Undang Hukum Perdata

Contract law plays a key role in trade and business. Failure to fulfill obligations in an agreement, known as default, can include non-fulfillment, delays, or performing actions not aligned with the agreement. The aggrieved party is entitled to seek compensation for the default. In a service agreement case resolved through arbitration, the Respondent was found to have defaulted. Despite both parties agreeing to all terms and performing the contract without objection, the Respondent was ordered to pay compensation under Article 1248 of the Civil Code, which includes the concept of "fraud." The author aims to analyze how default in service procurement is resolved through arbitration and whether the arbitral panel’s decision to impose compensation is justified according to the Civil Code and the contract. The research employs a normative legal approach, focusing on literature and statutory regulations. The findings show that both parties committed default, yet the arbitral panel only adjudicated the Respondent, as the Claimant was not counter-sued. Moreover, the Respondent's actions cannot be classified as fraud. The compensation imposed by the arbitral panel based on Article 1248 of the Civil Code should be seen as abuse of circumstances, not fraud..

Determining The Fees of The Arbitration Panel

The arbitrators' fees are originally determined according to the agreement that may be concluded by both the arbitrator and the arbitrators, provided that the failure of this agreement for any reason does not prevent the arbitration panel from determining its fees according to certain controls, and through this section we will examine the contractual determination of the arbitration panel's fees. As happens in free arbitration, the agreement of the parties and arbitrators regarding determining the fees that these arbitrators will receive in return for performing the arbitration task that will be assigned to them is absent, either due to their negligence, or because one of the arbitrators has been appointed by the court competent for arbitration matters, which naturally means a failure to agree, and in this research we discuss the legal provisions regulating this in Jordanian law with a comparison with some Arab laws, and the research reached the most important results: that in order to guarantee the integrity and objectivity of the arbitrator's determination of his fees alone, the Jordanian and Emirati arbitration law has subjected the arbitrator's decision regarding determining these fees to appeal, and the decision of the competent court of appeal in this regard is final

The US-China BIT: Enhancing Dispute Settlement Mechanism

This article critically examines the inadequacies of the International Centre for Settlement of Investment Disputes (ICSID) and the intricacies surrounding the divergent strategies employed by the United States and China in managing investor-state disputes. Given the lack of an explicit dispute resolution mechanism in the envisioned US-China Bilateral Investment Treaty (BIT), the paper advocates for a comprehensive strategy for shaping future agreements. It proposes integrating UNCITRAL Arbitration Rules as an alternative to ICSID; the inclusion of ad hoc Arbitration Panels is recommended for tailored resolutions; and the incorporation of alternative dispute resolution (ADR) mechanisms as pre-arbitration procedures is emphasized. This multifaceted strategy aims to address the deficiencies of a singular arbitration mechanism and foster a more adaptable and effective dispute resolution framework tailored to the specific needs of China and the United States, providing a balanced means of addressing the complexities inherent in investor-state disputes.

An appraisal of contemporary issues in trade disputes resolution in Nigeria

Evidentially, trade dispute generally originates from the interaction within an organized labour market. In recent times, the traditional notion of trade dispute as being a dispute between workers and their employers or between workers and workers may hardly be sustained, considering the fact that in certain instances industrial action may be aimed at government and the government may not be the employer of the workers. The paper adopts doctrinal methodology to examine trade dispute resolution in Nigeria by way of analyzing the concept of trade dispute that will always occur once there exist a working relationship. The paper evaluates, the Industrial Arbitration Panel (IAP) in its present constitution which is seriously handicapped to discharge its function effectively. The body lacks the independence required and expected of an adjudicatory body, more so, with the overbearing influence of the Minister on the duties of the IAP. The paper also recommends that in spite of the enormous challenges facing the I.A.P, the simplicity of procedure at the arbitration is a major advantage it has over litigation in the regular courts particularly as they have a time frame within which to discharge any despite before it.

Особенности рассмотрения запроса третейского суда о содействии в получении доказательств

International Commercial Arbitration is subject of Article 27, Law of the Russian Federation No. 5338‑1, July 07, 1993, while Arbitration Proceedings in the Russian Federation are described in Article 30, Federal Law No. 382-FZ of December 29, 2015. If a dispute settlement goes to institutional arbitration, a party or an arbitration court has the right to apply to a competent court with a subpoena of evidence. This article features the publication and execution of subpoena of evidence by arbitration court for the recovery of evidence. This category differs from other arbitration proceedings in that it requires a procedural appeal that initiates the proceedings, i.e., the subpoena of the arbitration court, and an applicant, i.e., the institutional arbitration court that is seeking assistance in the dispute. The author used the methods of teleological interpretation and functional analysis to justify the admissibility of normative provisions that exclude the right to issue a subpoena by ad hoc arbitrators and to send subpoena of evidence directly by the parties to the arbitration proceedings. The parties to the arbitration should be involved as interested parties. The applicant and the stakeholders have limited procedural rights and obligations since the court neither carries out jurisdictional activities nor considers the dispute per se, but coordinates assistance functions. As a result, some procedural shortcomings make it impossible to clarify the form and content of subpoena, as well as the type and content of documents that should be attached to it, e.g., an arbitration agreement, a state fee payment confirmation, a resolution on the arbitral panel, etc. The author also analyzed grounds for refusal to execute a subpoena of evidence. Excessive discretion and Delphic language should not violate the rights and legitimate interests of third parties, thus preventing them from participating in the arbitration.

Islamic Law of Inheritance among the Yoruba of Southwest Nigeria: A Case Study of Dar ul-Qadha (Arbitration Panel)

Islamic Law of Inheritance among the Yoruba of Southwest Nigeria: A Case Study of Dar ul-Qadha (Arbitration Panel)

النظام القانوني للتحكيم الحكومي في التشريع اليمني: دراسة تحليلية

This study explores the topic of government arbitration in Yemen as the primary means of settling disputes arising between government entities. It aims to understand the conditions, procedures, and the formation of government arbitration panels responsible for resolving these disputes. Additionally, the study seeks to highlight legislative shortcomings in government arbitration. The research adopts a descriptive and analytical approach, addressing two main sectionsareas: the nature of government arbitration and the procedures involved in government arbitration. Several key findings emerged from the study, including the mandatory nature of government arbitration, determined by arbitration panels appointed by the Minister of Legal Affairs, with delays in the formation of these panels. The study also identified legislative deficiencies, such as the absence of organized procedures and the failure to specify the executing authority, the duration of the review process, and the possibility of challenging the arbitration decision. To address these shortcomings, the study recommends amending the relevant legal texts, including specifying the executing authority for government arbitration decisions and allowing appeals against government arbitration decisions before the Supreme Court to eliminate legislative conflicts regarding the dispute resolution period.

Navigating the Appearance of Bias: Former Co-Workers on the Same Arbitration Panel

Navigating the Appearance of Bias: Former Co-Workers on the Same Arbitration Panel

Arbitration and Appraisal: Rent Reset Issues

Commercial leases often contain arbitration clauses to address disputes between a landlord and tenant. One of the most common disputes arbitrated centers on the determination of market rent or rent as defined or described in the lease, when the parties are unable to reach agreement through negotiation. Often the arbitration clause in the lease will dictate that an appraiser possessing certain professional qualifications and experience is to be selected and mutually appointed or party-appointed if an arbitral panel is contemplated. A determination of the rent to be fixed by the arbitrator or arbitral panel either during the term of the lease or at the end of the lease pursuant to an option to extend or renew the lease often requires evidence from real estate professionals, which typically include valuators. An appraiser appropriately qualified to act as an arbitrator, coupled with an effective appraisal strategy, should reduce the time required to complete the arbitration, and result in cost savings to both parties. Depending on the jurisdiction in which the property is located, the complexity of the valuation issue(s) or the amount of rent in dispute, it may be appropriate for each party to have its own appraisal report independently reviewed by a qualified appraiser prior to the arbitration. This article explores the decision to arbitrate and some of the issues encountered through the presentation of case studies, the role of an appraiser as an arbitrator, and the expectations of an appraiser acting as an expert witness.

Contradictions and tensions in the way the USMCA regulates energy

Abstract The international regulation of energy is complex, involving various legal frameworks such as economic agreements, environmental conventions, and dispute resolution mechanisms. These instruments often overlap and may not align, creating challenges for addressing energy-related issues. The United States–Mexico–Canada Agreement (USMCA) exemplifies these complexities. It addresses entitlements to natural resources, protection of energy-related transactions, cross-border energy policies, and environmental externalities. However, the USMCA does not fully resolve conflicts among differing policy goals within the energy sector. This article examines how the USMCA navigates issues related to resource entitlements, energy transactions, policy clashes, and environmental concerns. It argues that the absence of a unified energy policy leaves disputes to be balanced by resolution bodies, such as arbitration panels. The article scrutinizes each aspect of the USMCA’s approach and discusses potential mechanisms for resolving policy conflicts. The USMCA’s treatment of energy-related matters underscores the intricate interplay between international economic law and the energy sector, with implications for regional competitiveness and sustainability.

MEDIATING ROLE OF THE CHURCH IN PEACE BUILDING AND UNITY IN NIGERIA: IMPLICATIONS FOR NATIONAL DEVELOPMENT

The study examined the mediating role of the Church in peace building and Unity in Nigeria towards enhancing national development. The imperativeness of this is predicated on the fact that no society will record any meaningful development in a chaotic environment. Conflict all over the world has become an issue of concern to many, most especially when considering the myriads of problems that are associated with it. It is on the basis of this that this study was designed. A conceptual approach was adopted for the study, where the key concepts were reviewed. A critical analysis was carried out on the nexus between peace and national unity, church and peace building, peace and national development. Theories and approaches of peace building were also appraised. From the study, it has been revealed that the church has been involved in peace negotiations, arbitration panels, consultations, peace committees and intervention with relief materials in conflict zones. It has also been established that peace is a panacea for national unity, integration and development. It has been concluded that peace building needs collaborative efforts that must involve the leaders of the church and other stakeholders to mediate between the conflicting groups towards sustainable peace in Nigeria.

DEFINITION OF THE NOTION OF «INVESTMENT» UNDER THE 1965 CONVENTION ON THE SETTLEMENT OF INVESTMENT DISPUTES BETWEEN STATES AND NATIONALS OF OTHER STATES

The article analyzes scientific and the International Center for Settlement of Investment Disputes’ practical approaches to the interpretation of the notion of «investment» enshrined in the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States. The necessity of the research is due to, on the one hand, the absence of a unified, generally accepted definition of the notion of «investment», and, on the other hand, its role in resolving the issue of the jurisdiction of the International Center for Settlement of Investment Disputes over the resolution of international investment disputes. This issue is becoming increasingly relevant, given the steady economic and rapid technological development, which contributes to the emergence of new types of assets, in particular crypto assets. These latter may become the subject matter of an international investment dispute. Considerable attention has already been paid to this issue in a foreign legal opinion, whereas domestic science lacks research in this realm, which also indicates the relevance of this study. The article focuses on two main approaches, which are used by the International Center for Settlement of Investment Disputes while interpreting the notion of «investment». It is stated that the first approach, known in the English-language literature as the «double- barrelled test», lies in conducting a double study of the notion of «investment» by an arbitration panel – in accordance with a definition proposed by an international investment agreement, and in accordance with the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States. The second approach implies the direct appeal of arbitration panels to a term «investment», agreed by the States Parties to a relevant bilateral investment treaty. It is established that each of these approaches has certain advantages and disadvantages, the analysis of which allowed the author to offer recommendations on the merging of specified approaches in the process of defining the notion of «investment».

Briefly Noted

On July 25, 2022, the first Article 25 Arbitration Appeal award was issued. The Article 25 mechanism is being used while Appellate Body appointments are still blocked. The substance of the case concerned a dispute between the European Union and Turkey regarding a localization requirement whereby Turkey required foreign producers to commit to localize in Turkey their production of certain pharmaceutical products and where producers did not commit to doing so, relevant products were no longer reimbursed by the Turkish Social Security Institution. Ultimately, the arbitral panel found that the localization requirement was not justifiable under GATT (and consequently that the panel below had not erred in its judgment).

Scienza, diritto e giustizia internazionale (Science, Law and International Adjudication). By Chiara Ragni

Often, international adjudication needs to confront science. This is particularly so within international legal disputes that concern environmental and/or health matters. Almost a century ago a panel of arbitrators in Trail Smelter was asked to determine the amount of compensation for the reduction in value of land which had been affected by sulphur dioxide gases. The Tribunal, to be able to award damages, had to rely on a ‘just and reasonable inference’, aware that ‘the result [could] be only approximate.’1 In time, these types of assessments have become more frequent, more complex, and more sophisticated. One could refer, for example, to the difficulty in fully understanding the various implications of the presence of certain substances in a river for the health of the organisms present therein. International adjudicators are asked to digest very technical information upon which to base their judicial reasoning or, as it was put by Judges Al-Khasawneh and Simma in their joint dissenting opinion in Pulp Mills, ‘to arrive at a basis for the application of the law to the facts as scientifically certain as is possible in a judicial proceeding.’2 But are adjudicators equipped to do so? How do they conduct such assessments?

THE CONFORMITY BETWEEN LAW NO. 1 OF 2021 AND LAW NO. 30 OF 1999 IN THE RESOLUTION OF ECONOMIC DISPUTES BETWEEN INDONESIA AND EFTA COUNTRIES

Law No. 1 of 2021 mentions that there are basic materials stipulated in the IE-CEPA Agreement, among others, dispute resolution. This paper aims to explain the implementation of economic dispute resolution in the approval of a comprehensive economic partnership between Indonesia and EFTA countries perspective of the Arbitration Law. This research uses a library approach, where the data collection technique uses literature and document studies. Meanwhile, the data analysis used is a triangulation technique. The results showed that the approval of a comprehensive economic partnership between Indonesia and the EFTA country as stipulated in Law No. 1 of 2021 does not clash with Law No. 30 of 1999 on Arbitration. This is because there is an accompanying Arbitration Event Law, especially concerning the selection of arbitration panels. In all, there are 8 (eight) perspectives that show the similarity of the two Laws, namely: Written application in choosing dispute resolution through Arbitration; Conciliation and Mediation; Selection of arbitrators; Examination by the Arbitrator; Language of Arbitration; Determination is final and binding; Peaceful efforts; And not willing a person to be elected as an arbitrator.Keywords: Arbitration, Disputes, EFTA.

Monitoring the implementation and resolving disputes under the Brexit Withdrawal Agreement

The aim of this article is analysis of how the Agreement on the withdrawal of the United Kingdom from the European Union governs the mechanisms for monitoring its implementation and resolving disputes. All solutions are based on the international principle of good faith, which obliges the parties of the Agreement to apply it fully. Constant contact between them is ensured by the Joint Committee together with the Special Committees. Any dispute between the parties can only be solved based on the solutions contained in the Agreement, through international arbitration by an arbitration panel. Furthermore, of interest are the provisions governing the specific extension of the jurisdiction of the Court of Justice of the European Union and the practice of the parties to date.

The First Challenge to Canada’s Supply Management System under CUSMA: Tweaking the Supply Management System One Dispute at a Time

AbstractIn 2021, the United States challenged Canadian dairy import tariff rate quotas (TRQs) before the first state-to-state arbitration panel under Chapter 31 of the Canada-United States-Mexico Agreement (CUSMA). The panel held that the method of allocation of TRQs limited the US dairy industry’s access to the Canadian market and therefore violated CUSMA provisions. However, the panel also acknowledged that the Canadian supply management system for dairy products is a unique regulatory framework for production control, pricing mechanisms, and import control. This article explores the case as a test of the functioning of the improved CUSMA dispute settlement process and of Canada’s ability to protect its supply management system for dairy products from renewed pressure coming from its most important trade partner.

The Role of Social Media in Activating the Extracurricular Activities of the Ninth Grade English language from the Teachers’ Point of View in Jordan

This study aimed to identify the role of social media in activating the extra- curricular activities of ninth grade students in English language from the teacher's point of view in Jordan. The descriptive analytical approach was adopted through a sample of (45) male and (83) female teachers. The study tool consisted of (40) items, and the validity was verified by presenting it to a panel of arbitrators. The reliability coefficient was extracted and it reached (0.75) for each Test – Re test internal consistency reliability. The statistical analysis process reached the following results: There is a role for social media in activating extracurricular activities in the English language for the ninth grade from the point of view of teachers in Jordan. It was also found that the items that received a high level amounted to (33) items, as for the items that received medium level, there were (7) items. The study recommended the necessity for activating the extracurricular activities so that it is invested within the time of classes of all kinds and goes outside the time allocated for the class to achieve integration in education.

Status arbitra w postępowaniu arbitrażowym

Arbitration is frequently described as “justice for gentlemen”, which can suggest an absence of procedural issues of such significance to the outcome of the case as in the case of proceedings before common courts. Meanwhile, experience shows that only the types of disputed procedural issues differ slightly in arbitration, while their impact on the outcome is also significant. Of the formal issues, the most important seems to be the status of the arbitrators adjudicating in the case. Given that, in practice, arbitration is of a single instance and has a limited, exhaustively itemized number of premises specified in Article 1206 of the Civil Procedures Code for lodging a complaint to set aside an arbitral award, strict adherence by arbitrators to the principles of impartiality and independence is of fundamental importance. A possible breach of these principles can undermine the confidence of the parties not only in the arbitral panel in a specific case, but also in arbitration in general. Consequently, a possible attempt to remove an arbitrator, as a rule, constituting the manifestation of efforts to eliminate errors made while the arbitral panel was being constituted, is considered only a partial remedium. Therefore, the objective of the study is to analyse the key formal expectations of arbitrators, as well as consider selected issues related to the institution of the removal of an arbitrator - understood as a guarantee of his impartiality and independence. The intention of this analysis is to help define the status of an arbitrator in arbitration proceedings.

Implementation of Human Rights and the Mandatory Precedents in Foreign Trade, Legal Effectiveness: Mexico Case

We make an analysis of the implementation of human rights and the mandatory precedent in matters of Mexican foreign trade, in an administrative and judicial context in the search for legal effectiveness with constitutional control, highlighting the implementation of human rights contained in treaties commercial, such as access to justice and prompt and expeditious;
 We point out a recent case of human rights and foreign trade, with the implementation in the Mexican legal system, of the Free Trade Agreement Mexico United States Canada, before the Supreme Court of Justice of the Nation, as well as a possible proposal before the provisions of its Article 14.D.5, regarding the right of access to prompt and expeditious justice in investment matters, and avoiding the resolution of controversies before international arbitration panels that have been questioned.