Arbitral Tribunals Research Articles

Summary Dismissal in Arbitration

This article considers the United Kingdom Law Commission’s recent proposal to amend the Arbitration Act 1996 so as to expressly empower arbitral tribunals to make orders for summary dismissal of meritless claims/defences (among several other reforms to the Act). Noting the summary dismissal procedures available in the English courts and the provisions for summary dismissal now included in the procedural rules of the major arbitral institutions, this article concludes that such an amendment to the 1996 Act would be a very welcome development, promoting efficiency in London-seated arbitration and thereby further securing London’s position as one of the most popular seats of arbitration.
 Keywords: summary dismissal; summary judgment; Arbitration Act 1996.

The mechanism for the prescription of provisional measures in disputes concerning the interpretation or application of the UN Convention on the Law of the Sea

The article reviews the prerequisites and circumstances of the UN Convention on the Law of the Sea development in the context of creating a system for resolving international maritime disputes. It was found that the adoption of the UN Convention on the Law of the Sea was the result of a complex political process and lengthy negotiations at the Third UN Conference on the Law of the Sea. One of the results of that Conference was the establishment of the International Tribunal for the Law of the Sea and the Seabed Disputes Chamber as a part of the Tribunal.After that, the article analyzes separate norms that form a compulsory dispute settlement system for disputes concerning the interpretation or application of the UN Convention on the Law of the Sea. It has been established that the basic principles of the dispute settlement system established by the UN Convention on the Law of the Sea are the principle of peaceful settlement of disputes and the principle of compulsory dispute settlement. Exceptions to the application of compulsory procedures for resolving disputes concerning the interpretation or application of the UN Convention on the Law of the Sea are considered.The main part of the article is the delineation of the limits and peculiarities of the mechanism for the prescription of provisional measures in disputes concerning the interpretation or application of the UN Convention on the Law of the Sea. Certain common features and differences between the provisions governing provisional measures in the law of the International Court of Justice, on the one hand, and the UN Convention on the Law of the Sea, on the other, are revealed. The binding nature of provisional measures prescribed under Article 290 of the UN Convention on the Law of the Sea has been established.Subject to the degree of agreement between the parties to the dispute, the probability of different situations regarding the prescription of provisional measures under Article 290 (5) of the Convention has been revealed. The jurisdictional peculiarities of the prescription of provisional measures by the International Tribunal for the Law of the Sea on behalf of an arbitral tribunal not yet constituted under Annex VII or VIII of the UN Convention on the Law of the Sea, in particular the threshold for finding prima facie jurisdiction, are clarified. The conclusions of the International Tribunal for the Law of the Sea and some ad hoc arbitral tribunals regarding the jurisdictional aspects of the prescription of provisional measures are pointed out.

4A_374/2021, Arrêt du 23 novembre 2021 [Ultra petita – Right to be heard – Iura novit curia – Arbitral tribunal can grant less than what was claimed and rely on legal points different from those invoked by the parties]

4A_374/2021, Arrêt du 23 novembre 2021 [Ultra petita – Right to be heard – Iura novit curia – Arbitral tribunal can grant less than what was claimed and rely on legal points different from those invoked by the parties]

4A_512/2021, Ordonnance du 14 décembre 2021 [Arbitral tribunal annuls its own award in reaction to an annulment request filed with the Supreme Court]

4A_512/2021, Ordonnance du 14 décembre 2021 [Arbitral tribunal annuls its own award in reaction to an annulment request filed with the Supreme Court]

ISD소송 사례를 통해 본 충분한 보호 및 안전의 판단 기준에 관한 연구

With the development of BIT, the regulation of 'sufficient protection and safety' was introduced to protect and promote foreign investment. Sufficient protection and safety regulations have traditionally been limited to protecting investors and investment from physical damage and threats from troops, soldiers, and rebel workers in investment host countries. Cases applying sufficient protection and safety have dealt with damage to the physical assets of investors committed by third parties unless the governments of investment host countries exercise significant care in preventing damage or punishing actors. Regarding the meaning of ‘due diligence’, the arbitral tribunal has mentioned that due diligence is no more than or less reasonable precautions that are expected to be exercised by a legitimately operated government in similar situations. There are many cases in which the 'sufficient protection and safety' regulation is interpreted as a broad concept that includes providing legal stability as well as physical protection. It is difficult to say that a sufficient consensus has been formed on whether the ‘sufficient protection and safety’ standard should provide a business environment or legal stability in excess of the country's obligation to provide simple physical safety for foreign investors and investments. Furthermore, even if the scope of application of this provision is widely interpreted, the state cannot even take issue with exercising its legitimate regulatory authority to achieve reasonable policy purposes. The obligation to provide sufficient protection and safety for foreign investment is to protect investors from bullying by third parties or state actors, but banning regulations or legislation that affect investors should not be interpreted.

The resolution of professional tennis disputes

Abstract The regulatory landscape of professional tennis is scattered across several entities, each administering its own tournaments. This article focuses on disputes involving professional tennis players. In this context, it identifies two major areas of disputes, namely regulatory (encompassing disciplinary, doping and corruption offences) and contractual. The latter are chiefly resolved through litigation. Regulatory disputes are administered through distinct judicial and quasi-judicial institutions set up by the various tennis entities. The International Tennis Federation’s (ITF) international adjudication panel and its independent tribunal are the key institutions in this respect, with the independent tribunal possessing all the attributes of arbitral tribunals. The Court of Arbitration for Sport (CAS) has been conferred a limited appellate jurisdiction over decisions of these two entities. Overall, the ITF’s dispute resolution architecture has been effective and has created a significant body of precedent, further supplemented by that of the CAS.

The Concept of Competence-Competence: An Indonesian Approach

In international arbitration, the concept of competence-competence, which allows an arbitral tribunal to make decisions in cases within its own jurisdiction, is regarded as a fundamental principle. However, state adoption of the notion into their national law has shown that each nation applies this principle in different ways. In order to understand how the principle of competence-competence is used in the jurisdiction of Indonesian courts, it is important first to understand the country’s legal system. Our findings demonstrated that the Indonesian legal system needs to clearly apply the competence-competence concept, making it challenging to use the legal basis for arbitration in deciding cases within its own jurisdiction. This affects the Indonesian courts’ recognition of the principle, which has yet to be applied in accordance with the original provision. The authors suggest that Indonesia acknowledge and incorporate the competence-competence concept into its national law so that the principle can guide the court’s practice. Adopting this principle into federal legislation can improve the efficiency of arbitration and contribute to Indonesia becoming a nation with a supportive arbitration environment.
 Keywords: Arbitration, Competence-Competence, Arbitral Competence

Military Activities or Law Enforcement Activities?: Reflections on the Dispute Concerning the Detention of Ukrainian Naval Vessels and Servicemen

Abstract The interpretation of “disputes concerning military activities” under Article 298(1)(b) of the United Nations Convention on the Law of the Sea (UNCLOS) rests on a sensitive balance between the protection of strategic interests of States and the need for peaceful settlement of international disputes. There, an essential issue arises how an adjudicative body acting under Part XV UNCLOS should assess the nature of conducts of State for the purposes of Article 298(1)(b). This issue was vividly raised in the dispute between Ukraine and the Russian Federation with regard to the detention of Ukrainian naval vessels and servicemen. In this regard, both the International Tribunal for the Law of the Sea (ITLOS) and the arbitral tribunal set out in accordance with Annex VII UNCLOS wrestled with this issue. This article examines the manner of the interpretation of the concept of the military activities for the purposes of Article 298(1)(b) by comparing the approaches taken by ITLOS and the Annex VII arbitral tribunal.

Sovereignity Issues and Legal Framework Challenges for Foreign Direct Investment in Developing Countries

A host state has faced sovereignty issues and challenges in adopting and applying a legal framework for Foreign Direct Investment (FDI) governed by International Investment Law (IIL). IIL provides certain protection to FDI in a host country. The protections have been considered standard in the liberation of the FDI, which could positively impact the FDI attraction into countries. However, the host state's ability to regulate the public interests for a common concern of the peoples, such as social, economic, environmental, and human rights achievement, is indeterminate in IIL, and it became mostly a challenge for the host states. These needs are increasingly being requested by the population from governments. This study looks at how the state’s sovereignty power can be met in the adoption and application of laws and policies for the public's interest and assessment methods which are mostly used by the court in foreign investment disputes. An empirical analysis of the legal issue based on available literature is made. The findings of this study show that the necessity to understand the fears for sovereignty underpins the debate on its legitimacy in investment arbitration. The established sovereignty of state laws is shown in FDI and the desired areas of public interest regularisation. The international arbitral tribunals may reveal the right to balance between private and public interests in applying the national laws, which significantly show unclear and or open-textured international investment agreements (IIAs) provisions. The public interests are mostly applied to national laws over international law.

Arbitral Anti-Suit Measures: Implications of Mutual Trust

Abstract Arbitration is a legal promise between the contracting parties, and they should hold their promises. If there is any breach of that promise or any attempt to breach, the violating party should bear the outcomes. Upon a breach of an arbitration agreement, remedies become more crucial than ever to refrain the other party from commencing parallel court proceedings. Together with a stay and damages, a party seeking an effective remedy may benefit from an anti-suit injunction issued by either the court or tribunal. This paper examines the application perspectives of the mutual trust principle to arbitral proceedings while speculating upon anti-suit measures granted by an arbitral tribunal. The discussions particularly highlight the rebirth of the issue in the EU following the Gazprom case and the relevance/irrelevance of the latter to the West Tankers scenario. Considering the reasonings in the respective cases, the paper emphasizes uncertainty about the effectiveness of arbitral anti-suit injunctions and their enforcement. Upon identifying major normative gaps and shortcomings created by the essence of the existing legal rules, the paper reveals possible practical complexities and likely ineffectiveness of such measures. The findings suggest that uncertainties might be ultimately resolved by the revisions of the law which are on the horizon and reassessment of West Tankers by the cjeu or possible revision of the existing Brussels Recast Regulation taking scrutiny of the Gazprom judgment. At this juncture, the paper will briefly delve into the impact of Brexit on anti-suit injunctions in support of arbitration and its implications for arbitration rules and practice in the changing landscape.

Parallel Arbitral Proceedings: An Analysis of the Issue of Parallel Arbitrations in International Commercial Arbitration within the European Legal Space

Abstract Avoiding lis pendens within the EU has always been considered a guarantee for effective judicial cooperation. However, since arbitration is excluded from the scope of European procedural law, questions have been raised as to how parallel arbitral and state court procedures will be regulated. This article aims to illustrate the mechanisms that have been proposed to resolve this issue outside the European Regulations’ scheme with a focus on parallel arbitrations. Under this scope, the author attempts to discuss the potential solutions that have been introduced in respect to “lis pendens” between an arbitral tribunal and a state court as well as their effectiveness. Taken the tie from this analysis, the last part of this article focuses on the issue of parallel arbitral procedures and whether conflicts of jurisdiction can be resolved by using the same mechanisms as adopted in the case of parallel the arbitral and state court proceedings.

The Applicability of the Brussels I bis Regulation to Hybrid Dispute Resolution Clauses

Abstract The hybrid clause is an optional dispute resolution clause that offers the parties to a contract, for resolving their dispute, an option between state courts and arbitral tribunals. The combination of two different dispute resolution mechanisms, litigation and arbitration, raises the issue of determining the international or regional instruments applicable to this clause, such as Brussels I bis Regulation. As a matter of fact, the Recast of Brussels I Regulation, in line with its predecessors, excludes arbitration from its material scope. Since the hybrid clause contains an option to arbitrate, this exclusion raises the question of the applicability of the Regulation to this form of optional dispute resolution clause.

Might contain traces of Lotus: The limits of exclusive flag state jurisdiction in the Norstar and the Enrica Lexie cases

AbstractThe article scrutinizes some of the surprising commonalities in the reasonings of two recent decisions by two separate judicial forums: the ITLOS’s judgment in the M/V Norstar case and the award of an ad hoc arbitral tribunal in the Enrica Lexie case. One key connection between the two decisions is their heavy reliance on the Lotus judgment of the PCIJ. Another similarity between the two disputes is that both of them revolve around the concept of exclusive flag state jurisdiction under UNCLOS Article 92(1) and adjacent questions of jurisdiction on the high seas. The article is going to subject both decisions to criticism and argue that some of the more problematic positions adopted by the tribunals in both cases amount to no more than obiter dicta – thus establishing an additional parallel with Lotus, which also received heavy criticism for its controversial obiter dictum. The two tribunals’ new-found interest in Lotus also provides an opportunity to discuss the utility and legal weight of Lotus as a precedent in the face of a century of developments in treaty law and judicial practice. In this sense, this article builds on and attempts to continue the recent trend in scholarship advocating for a renewed appreciation of the Lotus case against the backdrop of decades of criticism against it. Accordingly, the article aims to facilitate a better understanding of all three disputes, the principles they applied, and the dynamics of international adjudication and international law in general.

Elephant in the Room: CISG, Hardship, and Uniform Application

It has long been disputed by scholars, courts, and arbitral tribunals whether or not hardship is covered by Article 79 of the CISG. In 2020, the CISG Advisory Council published an opinion and expressed the view that CISG governs cases of hardship but under Article 79, the parties have no duty to renegotiate the contract; and a court or arbitral tribunal may not adapt the contract or bring the contract to an end. Council’s opinion is primarily based on the aim to prevent recourse to domestic law. In fact, if one accepts that CISG contains a gap concerning hardship, domestic law will apply to fill such gap, and this would undermine the unification of the law. However, this can hardly be a reason to accept that cases of hardship are covered by Article 79 CISG. Historical, textual, and teleological interpretation of Article 79 as well as an economic analysis of the concerned remedies show that Article 79 does not cover and/or is not suited to apply to cases of hardship. Therefore, there is an internal gap within the CISG concerning hardship and except for some exceptional cases, where one could find an international trade usage between the parties, the last resort to fill such gap is resorting to the domestic law applicable through private international law. Hardship, adaptation, renegotiation, CISG, external gap, internal gap, pacta sunt servanda, clausula rebus sic stantibus, observance of good-faith in international trade, international trade usage

Bridging multinational corporations' investment‐climate gap: Prospects for the direct claims approach

AbstractMultinational corporations (MNCs) have enjoyed considerable investment rights and gained massive benefits under international investment law; at the same time, they have also significantly contributed to the climate crisis. Yet, they do not bear corresponding climate change obligations. A huge gap between MNC investment rights and climate change obligations—the MNC investment‐climate gap—persists because of MNCs' global operations, the limited reach of domestic legal mechanisms in regulating MNCs' obligations, and the ineffectiveness of international regimes at addressing MNCs' obligations. This gap is mainly due to the asymmetrical structure of the investor‐State dispute settlement regime. To correct this asymmetry, this article explores the possibility of direct claims by States against MNCs under recent investment treaties. In particular, it analyses this possibility from three angles: investor obligations, arbitral tribunals' jurisdiction and States' initiation of claims. To facilitate such claims, one must reconsider the jurisprudence of international investment law.

Past and Present? Greece in International Arbitration in the Twentieth Century

Abstract During the twentieth century, international arbitration became an integral part of interstate dispute resolution. Greece, a small state with no particular influence, also rushed to utilize arbitration to pursue its interests, resolve intense disputes and ultimately stabilize its position in the international system. This article will discuss if and how lower-level settlement procedures can impact smaller countries’ higher political strategy, exploring Greece’s recourse before the Mixed Arbitral Tribunals, the League of Nations and the Permanent Court of International Justice. Athens’ efforts to pursue its citizens’ war claims against West Germany after World War II will be examined, along with the role international arbitration could potentially play today in resolving Greece’s war claims against the Federal Republic of Germany, which Athens raised immediately after the 1990 reunification and continue to encumber bilateral relations. Ultimately, Greece’s experience will exemplify the direct impact arbitration procedures can have on international relations.

The Battle of Ideas under LOSC Dispute Settlement Procedures

Abstract Dispute settlement procedures under the United Nations Convention on the Law of the Sea (LOSC) can be a great laboratory for observing judicial processes of exploring and testing the acceptability of multiple solutions to issues of interpretation through a battle of ideas among LOSC adjudicators. The analysis observes that LOSC tribunals tend towards two jurisprudential patterns when battling their ideas: (1) the International Tribunal for the Law of the Sea (ITLOS) takes an implicit approach of deviating from previous case law of other LOSC tribunals; and (2) Annex VII arbitral tribunals have been quite straightforward when facing a diverging interpretative discourse. This article explains the institutional dynamics underpinning these two jurisprudential patterns. Calibrating judicial reasoning of the ITLOS is proposed, which would hopefully stimulate a vibrant battle of ideas facilitating coherent development of international law.

The Eurasian Vector as a Priority of Russia’s Parliamentary Diplomacy

The article discusses certain special aspects of Russia’s parliamentary diplomacy in the context of global confrontation with the West. It demonstrates that the Eurasian vector of the parliamentary dimension should become the priority thereof. The article researches multilateral and bilateral inter-parliamentary relations aimed at the formation of Eurasian law and the creation of conditions for functioning of Eurasian courts and arbitration tribunals. Certain features of the work of Eurasian parliamentary institutions are revealed, such as: the CSTO Parliamentary Assembly, IPA CIS, the Parliamentary Assembly of the Union of Belarus and Russia on economic, political, military, humanitarian integration in the post-Soviet territory.Aim. Disclosure of the content of the Eurasian vector of Russia’s parliamentary diplomacy as a priority dimension in the context of global confrontation with the West.Tasks. Analyze features of the Western and Eurasian vectors of parliamentary diplomacy of Russia; explore forms and methods of parliamentary diplomacy in the post-Soviet territory; determine ways to strengthen the role of the parliamentary dimension in the processes of Eurasian integration.Methods. Systematic approach, comparative analysis, compilation of the best practices.Results. The study showed the need for a transition to bilateral forms of inter-parliamentary cooperation between Russia and unfriendly countries of the West and the effectiveness of multilateral cooperation with the countries of the East in order to develop Eurasian integration. The relevance of creating a parliamentary dimension in the EAEU and completing the formation of parliamentary institutions in the CSTO and the Union State has been substantiated.

Use of Corruption Defense by Host States in Investor-state Arbitration

Concerns about corruption have significantly grown in international investment law. Although foreign investment may boost the social and economic development of the host country, investment tainted by corruption has adverse effects, such as rising transaction costs and declining confidence in the business climate. As a result, there is a contentious argument over whether an investor who used bribery during their investment can file a claim against the host State in international investment arbitration. When investors are involved in corruption to facilitate their investment, the question of how to use corruption defense is crucial for respondent States, particularly those engaged in a ferocious fight against corruption like Vietnam. Therefore, this paper seeks to answer this question. It reveals that in investment arbitration, host States can use corruption defense in diverse ways: as an objection to jurisdiction, a challenge to the admissibility of the claims, or a substantive defense. Further, this paper evaluates the viability of these options by examining how arbitral tribunals have dealt with host States' corruption claims in the past and how the current treaty reforms may affect tribunals' decisions in future disputes. Based on this analysis, the author provides recommendations for respondent States to effectively use corruption defense in investment disputes.

AN INSPECTION OF LEGAL DILEMMA IN ARBITRATION PROCEEDINGS AND INSOLVENCY PROCEEDINGS

Arbitration proceedings are intended to resolve the dispute between contractual parties according to the contract by which parties bind and govern by the mutually decided laws. Arbitration and Conciliation Act 1996 derived its source from UNICTRAL model law on International Commercial Arbitration in 1985. Whereas, the Insolvency proceedings are right in rem means that it can adjudicate the claim of people. The Insolvency & Bankruptcy Code 2016(IBC) enacted after repealing Act i.e., Sick Industrial Companies Act (SICA) which is a paradigm shift from debtor centric to creditor centric. It is pertinent to discuss that whether the conflict between Insolvency proceedings and Arbitration proceedings runs simultaneously or not? In India, Law is not clear in this regard so it can be resolved by two folded arguments, first, that the moratorium issued under Section 14 of IBC bars the jurisdiction of the Arbitration Tribunal. Secondly, that the law IBC has overriding effect over the law which governs the arbitration proceeding. The law is not clear about the status of both the proceedings run simultaneously. It is a well settled law that as soon as the moratorium order has been passed by the tribunal then all the legal proceeding has been stayed till the disposal of the moratorium order pending against the corporate debtor.