Arbitration Panel Research Articles

Regulating Labour Disputes in the Police Services: Legal and Practical Perspectives from Ontario and British Columbia, Canada

Ontario and British Columbia, Canada, have not seen a police strike in living memory. The reason for this is the mandatory interest arbitration model adopted in the two provinces, which sees disputes that cannot be resolved by mutual bargaining referred to a panel of arbitrators who assess submissions in light of statutory criteria. Police officers, and the unions who represent them, have utilized this model to increase pay and improve working conditions often, employers say, without regard to ‘ability to pay.’ This article assesses that claim against the results that the model produces and how insiders understand the system as operating. Its conclusion is that interest arbitration has produced good results, especially for police and emergency workers and the community they serve, but the means of getting there have soured relations and may need reform to remain sustainable into the future.

Revisiting U.S. country of origin labeling trade damage estimates how does an equilibrium displacement model perform under different scenarios

AbstractMexico and Canada successfully challenged the U.S. mandatory country of origin labeling (COOL) requirements for beef and pork as inconsistent with World Trade Organization (WTO) rules, which ultimately led to arbitration over the level of trade lost due to the COOL measure. During this phase of the dispute, Mexico, Canada, and the United States provided the Arbitration Panel with estimates of the trade losses caused by COOL that were produced using different quantitative methods. The U.S. estimates were based on an equilibrium displacement model (EDM). This article presents a version of the EDM used by the U.S. Government to calculate trade losses due to COOL. The Panel developed its own analysis combining econometric analysis and an EDM that used only supply‐side information to calculate changes in Canadian and Mexican livestock trade. The U.S. EDM includes both the supply and demand sides of the market. We use the U.S. EDM and the Panel's assumptions to re‐estimate the value of lost trade due to COOL. The inclusion of demand‐side effects and domestic COOL costs produces lower estimated trade damages than those produced using the Panel's analysis, validating the EDM as a useful quantitative tool for this type of trade policy analysis.

International Commercial Arbitration and the Possible Application Thereof in Iraq

International commercial arbitration is a special judicial system based primarily on an agreement, be it an arbitration clause or an arbitration agreement (compromise), between
 parties to a dispute. It is therefore a system aiming at settling commercial disputes by submitting them to a single arbitrator, or an arbitral panel, or an arbitral tribunal (e. g. , the
 International Court of Arbitration). It is therefore also a means for settling an existing or future dispute that entails refraining from resorting to the competent judiciary. It is also
 an extra – judicial action aiming at establishing justice between people. The aim of arbitration is to bring justice to parties in conflict, but it is also designed to preserve peace
 among them, by providing solutions that are deemed satisfactory by each party, and through direct confrontation. It is a technical means for peaceful cooperation between
 countries with different systems. Resorting to international commercial arbitration is intended to solve a dispute based on a desire for reconciliation, to thereby avoid private
 retribution, without waiving the protection of the law, although it does entail waiver of state judges’ jurisdiction to rule over the dispute, since the parties choose their own
 judge.
 This type of Arbitration is called “international” if it relates to international commercial interests. Arbitration is also used in other areas, e. g. , personal status and tribal arbitration
 in Iraq. However, our study concentrates on international commercial arbitration and the possible application thereof in Iraq.

PSYCHOLOGICAL AND SOCIAL VARIABLES AND THEIR RELATION TO THE YOUTHFUL PRACTICE OF SPORT - FIELD STUDY ON A SAMPLE OF YOUNG PEOPLE IN DIFFERENT ENVIRONMENTS

ر The study aimed to prove the effect of playing sports on the psychological and social variables of young people practicing sport in different environments. The importance of the study in providing scientific explanations on psychological variables (self-confidence, anxiety, ambition) and social variables (decision-making, social values, social communication) and its relationship to the exercise of youth for sports and whether they differ according to the surrounding environment, which is created by young people, whether civilized environment or rural environment Among the study-oriented theories that dealt with psychosocial variables were Freud's psychoanalysis theory, Adler's theory, classical or traditional theory, functional constructivist theory, and deterministic theory. The method used in the study is the descriptive comparative approach, and this approach focuses on comparing one category in different circumstances to highlight strengths or weaknesses. The sample of the study consisted of 200 young practitioners of sport between the ages of 18:21 in the rural and urban environments. Psychosocial variables scale, which was prepared from previous studies and presented to the panel of arbitrators to demonstrate the validity of the scale. The results of the study found that the exercise of sport affects the psychological and social variables of youth practicing sports and vary from environment to environment. Disseminating cultural awareness about the role of sport in raising young people psychologically and socially through schools, universities and the media. Developing programs by the Ministry of Youth and Sports to encourage young people to practice sports.

Tobias Asser’s Legacy: The Pertinence of the Institut de droit international to The Hague

This article is occasioned by this year’s visit of the Institut de droit international to The Hague. It addresses the seminal role that the Institut (f. 1875) has played in advancing The Hague to its position as the ‘Judicial Capital’ and the hub of international law. In reviewing the part that Tobias Asser, the co-founder of the Institut, played in the launching of L’Oeuvre de La Haye, it stresses the critical impact of his colleagues at the Institut at all major stages: from the Conference de La Haye (f. 1893) to the Peace Conferences and the Hague Conventions, and along the establishment of the Permanent Court of Arbitration (f. 1900), the Peace Palace and its Library to the implementation of the International Judiciary (f. 1922) and the Hague Academy of International Law (f. 1923). The article reviews the four previous Sessions of the Institut in the Netherlands (1875, 1898, 1925 and 1957) and highlights the role and record of the close to thirty Dutch internationalists who were elected to its membership. The author emphasizes the critical impact of the research body of the Institut on the development of the law and the city’s debt to the scores of members who, over the past century, have graced the arbitral panels and the benches of the International Courts, or served as lecturers at the Hague Academy. The author recommends a comprehensive study of the above tradition for 2023, when the 150th anniversary of the Institut coincides with the Centenary of the International Judiciary in The Hague.

Regulatory chill and the effect of investor state dispute settlements

AbstractLegal conflicts between multinational firms and host governments are often decided by international arbitration panels—as opposed to courts in the host country—because of provisions in international investment agreements known as investor state dispute settlements (ISDS). Critics fear that investor protection such as ISDS make governments reluctant to adopt appropriate policies (regulatory chill). In this paper I develop a theoretical model in which the outcome of cases brought to court is uncertain owing to the vagueness of the law protecting investors and a court's inability to correctly identify a state of nature with certainty. I show that from a world welfare perspective there is no underregulation, only an overregulation problem. However, from a national welfare perspective “frivolous” lawsuits may lead to regulatory chill. I also identify conditions under which ISDS can lead to a Pareto improvement that involves simultaneous changes in compensation payments and protection rights relative to a national court.

Medico-legal claims in colorectal surgery: Analysis of 231 files.

The patient undergoing surgery is at risk of complications, some of which can be serious; these can expose the surgeon or institution to claims for compensation of damages. The aim of this study is to analyze the surgical management of these situations in order to draw lessons, to improve the management of patients, and to prevent both complications and resulting claims. Two visceral surgeons analyzed two hundred and thirty-one claims files. The patient's characteristics and data, the intervention, the source event of the claim, re-interventions, transfers, deaths and their causes were identified. Any error, whether it was identified by the expert or by the arbitration panel or court and vice versa was analyzed, including any amicable out-of-court agreement proposed by the insurance, even, if in certain cases, no real fault had been found. The mean age of the colon surgery patients was 62 years. The pathologies for which surgery was performed fell into three equal parts: colon cancer, sigmoid diverticulitis, and other pathologies. The event leading to the claim occurred during hospitalization in 69.2% of cases. The most common events prompting claims were anastomotic leak (34.1%) and injury to neighboring organs (16.4%). In 36.7% of cases, patients required transfer to another facility and 31.1% died. At least one fault or error was found in 46.8% of cases. Anastomotic leak has always been considered an inherent risk of colonic surgery. The main fault alleged was delay in management in nearly two out of three cases, including delays in communication, in physical and laboratory examination, medical treatment, re-operation, and transfer. Specific information was provided to the patient before surgery and an effective checklist to prevent complaints and complications. In the post-operative period, an active approach to management initiated without delay by the entire team when faced with any unexpected event favored a quick recovery and could avoid the complaints; exams, sometimes lacking, remain complementary as their names indicate.

Rechtsnatur und Spruchpraxis der Schiedsinstanz für Naturalrestitution

The Arbitration Panel for In Rem Restitution of Publicly Owned Property, created by the Joint Statement of the Governments of Austria and of the United States of America of 17 January 2001 (Washington Agreement) and formally established by the Austrian Federal Law on the Compensation Fund (Entschadigungsfondsgesetz), was an international body consisting of three members, two of them nominated by the contracting parties, with a chairman agreed upon by the two arbitrators. On the basis of individual claims filed by victims of the National Socialist era or by their heirs for the restitution of real estates seized by the Nazi regime and still in public ownership on 17 January 2001, the Panel had to consider supportive evidence and relevant findings of the Austrian Historical Commission and – as a result – make recommendations for restitution to the competent Austrian Federal Minister. However, previous relevant decisions of Austrian authorities or agreements of the parties themselves were not subject to revision, unless the Panel decided unanimously that those settlements constituted an extreme injustice. After having considered 2,307 claims in the period of seventeen years, the Arbitration Panel concluded its work at the end of August 2018.

Regulatory Chill and the Effect of Investor State Dispute Settlements

Legal conflicts between multinational firms and host governments are often decided by international arbitration panels - as opposed to courts in the host country - due to provisions in international investment agreements known as Investor State Dispute Settlements (ISDS). Critics fear that investor protection such as ISDS make governments reluctant to adopt appropriate policies (regulatory chill). In this paper I develop a theoretical model in which the outcome of cases brought to court is uncertain due to the vagueness of the law protecting investors and a court’s inability to correctly identify a state of nature with certainty. I show that from a world welfare perspective there is no underregulation, only an overregulation problem. However, from a national welfare perspective “frivolous” lawsuits may lead to regulatory chill. I also identify conditions under which ISDS can lead to a Pareto improvement which involves simultaneous changes in compensation payments and protection rights relative to a national court.

THE ROLE OF THE STATE IN INDUSTRIAL DISPUTE SETTLEMENT MECHANISMS IN NIGERIA

Disputes and dispute resolutions are part and parcel of any functional industrial relations system. Therefore, the need to resolve them equitably, efficiently and effectively for the benefit of the actors is of paramount importance. The objective of this study is to examine the State intervention in dispute settlement and its contributions in peaceful resolution of disputes in Nigeria. The paper adopted the qualitative research approach. Relevant data were collected from the Lagos offices of the Federal Ministry of Labour and Employment, the Industrial Arbitration Panel and the National Industrial Court. The study found that the various pieces of legislation enacted by the State have positively impacted on the settlement of Industrial Disputes in Nigeria. However, it was observed that despite the positive contributions, there are still some areas for improvement. The study therefore made the following recommendations; that the powers of the Minister of Labour and Employment should be restricted to create an enabling industrial relations environment for the actors and that the parties to disputes should be allowed the choice of which method of disputes settlement to use among other recommendations.

Arbitration in classical Athens

The Classical Athenians developed two formal arbitration procedures. They assigned low stakes disputes to a panel of arbitrators, while high stakes cases were handled by a single arbitrator. Given the information aggregation benefit of collective decision making, one would have expected more individuals to be assigned to more important cases. I develop a theoretical model to provide an explanation for their design. Recognizing that arbitrator competence is endogenous, effort put into making a good decision takes time and effort. In larger groups free riding is a concern. Consequently, there exists environments where the free-riding loss is magnified in higher stakes disputes to the point where the socially optimal panel size is inversely related to the stakes involved.

Evolution of Arbitration System under the China FTZ Template

The construction of China’s free trade zones (FTZs) has levered the evolution of the arbitration regime in the People’s Republic of China (PRC). Under the FTZ template, breakthroughs in arbitration have been made in regulations, FTZ arbitration rules, arbitral proceedings and judicial practice. The development of FTZ arbitration mechanism is highlighted with the introduction of new concepts, such as ad hoc arbitration consolidation of arbitration joinder of third parties and model cases, and with the updated or expanded interpretation of the existing concepts, such as permission for the offshore arbitration for WFOEs and FIEs interim measures arbitration in combination with mediation, and the open panel of arbitrators. Regardless of the progress, many issues related to the FTZ arbitration need to be clarified, among which is the amendment of the PRC Arbitration Law and keeping it in line with the mainstream international arbitration, constitute probably the most effective way to promote and guarantee the arbitration evolution.

The uniform plan: a cost–benefit analysis of a proposed CAS first-instance tribunal to hear all anti-doping cases

In April 2017, at a meeting between Court of Arbitration for Sport (CAS) representatives and representatives from winter sport International Federations (IFs), CAS announced that it intended to establish a permanent anti-doping division, to be operational by the 2020 Summer Olympics, to handle the adjudication of all “first-instance” arbitration hearings involving alleged violations of the World Anti-Doping Code. Spurred by the creation of the CAS Anti-Doping Division at the 2016 Olympic Games, to replace the hearing process formerly conducted by the International Olympic Committee (“IOC”) Disciplinary Commission at prior Olympic Games, this model stands to offer several benefits, including, for example, more uniform treatment of athletes on a global stage, and a uniform panel of qualified arbitrators to decide all first-instance anti-doping matters. CAS’ plan also raises several questions and potential concerns, which include, but are not limited to: the elimination of credible and effective first-instance tribunals set up by certain National Anti-Doping Organizations (“NADOs”) and International Federations (“IFs”); the potential for increased cost to athletes for first-instance hearings; and whether appeals to CAS from a CAS first-instance tribunal can truly offer de novo appellate review. Though there appears to be no intent to eradicate NADOs or their testing authority in the near future, should the IOC and/or a majority of International Federations require the use of a permanent CAS anti-doping division to hear first-instance anti-doping cases, this paper outlines what such an approach could mean for the adjudication of anti-doping matters in sport.

Talking Across the Boundaries: Engagement between the WTO and ISDS Adjudicators

Research in this paper focuses on three basic but imperative questions. The first question concerns in what pattern ISDS panels have been using the WTO acquis. Part I thus offers a recount of the circumstances in the case law where a number of arbitral panels have engaged with the WTO norms and adjudicatory decisions. To date, the ISDS tribunals have used WTO acquis mainly under three circumstances where it respectively serves as interpretative aid, source of authority/inspiration and adjudicatory parameters. Nevertheless, the impact the invoked WTO acquis has generated upon the pending proceedings varies. The second part investigates the reasons why ISDS tribunals have used the WTO acquis in the current pattern. This part puts forward and investigates four major reasons that explain the current module of engagement, namely, the change of model in international business, the achievement of WTO dispute settlement system, the complex inter-regime relationship between trade and investment and the shared ideology of jurists between the two regimes. The last question to be address also constitutes part of the conclusions of the paper: what are the implication and consequence of the ongoing engaging activities between trade and investment adjudicators? This part put forward two major arguments. First of all, the often suspected adjudicatory chaos, associated with the plurality and proliferation of international courts and tribunals, is more perceived than real. Discrete judicial decisions should be carefully analysed rather than being blindly redeemed as threat to system coherence. Second, cross-jurisdictional engagement among judicial actors has injected positive developments in pursuit of adjudicatory legitimacy and credibility, arguably serving as an agent of harmonization of international legal system, which consists of a number of specialised, co-existing, discrete but yet non-self-contained sub-regimes.

Parate Execution in Disputes Settlement of Financing Contract with Mortgage Guaranteed On Islamic Banking Practices

Disputes settlement of financing contract with guaranteed mortgage after the decision of the Constitutional Court No. 93/PUU-X/2012 requires a follow-up of the existing verdict by conducting execution. Execution implies a forced attempt to actualize rights and/or sanctions. Parate execution is a direct confiscation of mortgage without authorization from the court. Based on the phenomenon, the purpose of this research is to seek a common ground between Islamic principles and national law on the concept of parate execution related to mortgage rights on Islamic banking practices and to know parate execution mechanism in the dispute settlement of the financing contract with the guaranteed mortgage on Islamic banking practices. This research is a socio-legal research using qualitative analysis and philosophical and sociological approach. Primary data was obtained from the results of research in 7 (seven) Religious Court and Supreme Court. As for the results of the research, it was found that the point of contact between Islamic principles in some existing rules with the concept of parate execution related to mortgage rights in Islamic banking practices by making a legal finding (istimbad), using the existing Islamic legal basis and complete it with the rules that apply and developing in Indonesia that is not contrary to Islamic Law. The mechanism of execution of guaranteed mortgages is executed by the Shahibul Maal (creditor/sharia bank) without having to perform the fiat execution to a religious court but simply register the arbitral panel decision to the religious court.

The South China Sea Arbitration (The Republic of Philippines v. The People's Republic of China)

I Introduction The Philippines v China Award in July 2016 of the Annex VII Arbitral Panel established under the auspices of the Permanent Court of Arbitration will stand as one of the most significant decisions of the law of the sea. The Award determined claims by the Philippines challenging China's assertion of so-called 'historic title', the characterisation of various land features, and the legitimacy of actions taken by China in the disputed areas. The claims of the Philippines were overwhelmingly accepted by the Tribunal. The central findings made by the Tribunal were that: (i) China had no entitlement to the waters, or resources of the sea or sea-bed, in the South China Sea based on any historic claim of use, and China's claims fell to be determined by the rules of the United Nations Convention on the Law of the Sea (UNCLOS); (ii) none of the land features claimed by China had the characteristics of an island for the purposes of Article 121 of UNCLOS, and hence none were capable of generating an exclusive economic zone; (iii) many of the land features claimed by China were low tide elevations (i.e. features that are submerged at high tide) and are therefore incapable of generating a 12 nautical mile territorial sea; (iv) many of the land features claimed by China were within the exclusive economic zone of the Philippines; and (v) as a result, many of the actions taken by China in the disputed areas by way of construction of artificial structures and interference with fishing rights amounted to unlawful interference with the rights of the Philippines for the purposes of UNCLOS. Many of the rulings could be described as predictable, in the sense that they are based upon a textual and contextual analysis of the relevant provisions of UNCLOS. Perhaps because the decision is legally sound and defensible, China's initial response focused upon attacks upon the perceived legitimacy of the Tribunal rather than the merits of the Award. The disputes in the South China Sea encompass a number of overlapping claims, some of which do not directly involve China (for example, each of China, Vietnam, Taiwan, the Philippines, Malaysia and Brunei lay claim to parts of the Spratly Island chain, and each claims extensive exclusive economic zones from islands in that chain, with those claimed maritime zones overlapping and intersecting). The Award therefore has significance well beyond China and the Philippines. Because of the principled and detailed manner in which the Tribunal approached its task, the Award will also stand as an authoritative statement of legal doctrine in the previously uncharted areas of UNCLOS to which it is addressed. This note will consider the jurisdiction and legitimacy of the Tribunal and the Award, and the key legal rulings contained within it. II The Background to Legitimacy Legitimacy in international law dispute settlement is an oft-studied and fragile creature which influences both the direct likelihood of enforceability of a particular award, and also the longer term influence of a particular award in the international community. (1) The legitimacy of the South China Sea Tribunal and the resulting Award was subject to continuous scrutiny and criticism by China throughout the process, and following the Award. That criticism must be placed in the context of existing scholarship on legitimacy. In the case of international treaty regimes, a dispute resolution procedure can have a direct effect either by virtue of related sanctions or as a result of the normative legitimacy pull of its decisions. (2) Adverse decisions or findings lead both to diplomatic pressure and adverse publicity for the state in question, each of which encourages compliance with the view or decision of the international tribunal. International dispute resolution procedures also serve to interpret relevant international laws or rules, increasing the efficacy and progressive development of the international legal system. …

3 Arbitral Panel Established Pursuant to Chapter Twenty of the Dominican Republic – Central America – United States Free Trade Agreement, 14 June 2017

3 Arbitral Panel Established Pursuant to Chapter Twenty of the Dominican Republic – Central America – United States Free Trade Agreement, 14 June 2017

U.s.-Guatemala Arbitration Panel Clarifies Effective Enforcement Under Labor Provisions of Free Trade Agreement

u.s.-Guatemala Arbitration Panel Clarifies Effective Enforcement Under Labor Provisions of Free Trade Agreement

Financing Sustainable Landscapes through Innovative International Economic Law and Governance Instruments

This article examines innovative ways to promote investment and financing of sustainable landscape initiatives in international law. It argues that increased flows of investment and finance for sustainable landscapes must be guided by a clear and comprehensive legal framework; better and more appropriate knowledge and technologies; more informed decision-making; and improved governance at all levels. The article considers concerns and opportunities to support the financing of sustainable forestry and land-use programs, especially in developing countries. It reviews the key contributions of international investment instruments to sustainability landscapes financing, in light of recent decisions concerning International Investment Agreements (iias) by arbitral panels convened to hear disputes under the rules of the International Centre for Settlement of Investment Disputes (icsid) or the United Nations Commission on International Trade Law (uncitral). It then proposes innovative ways that investment and financing rules might foster more effective implementation of innovative financing instruments, such as Landscape Funds in developing countries.

Indeterminación normativa y criterios de interpretación en los paneles arbitrales del CIADI. Un análisis de algunas de sus deficiencias procedimentales basado en el exigencia de “contribución al desarrollo del estado receptor” como requisito para acceder

En las últimas décadas hemos observado un creciente protagonismo de los actores judiciales en materia interpretativa, especialmente en aquellas vinculadas a conceptos indeterminados propios del derecho internacional, y más particularmente, de los derechos fundamentales. El trabajo postula que este mayor activismo judicial no puede ser apreciado ni justificado con iguales criterios en asuntos tan distintos como los conflictos entre derechos constitucionales (que admiten una mayor construcción judicial) o los temas comerciales y penales (en los que el apego a la norma y a la seguridad jurídica ofrecida debe ser mayor). Para justificar lo anterior, analiza los oscilantes criterios que han tenido los paneles arbitrales del Centro Internacional de Arreglo de Diferencias relativas a Inversiones (CIADI) en la evaluación del criterio central del sistema y que da el acceso a su jurisdicción: la inversión extranjera. A partir de ello, señala una serie de cuidados y precauciones que el sistema podría adoptar para mejorar sus estándares y prácticas jurídicas y hace un análisis basado en el rol y los criterios exigibles a los distintos tribunales en un sistema de justicia global.