Arbitral Tribunals Research Articles

Parité n’est pas diversité ! Loin de la favoriser, la parité fait en réalité obstacle à la diversité en matière d’arbitrage commercial

Over the last decade, commercial arbitration undeniably progressed towards more diversity on its arbitral tribunals. Mainly geared towards gender, ethnic and age, increased diversity was the result of a determined and relentless push by interest groups, themselves a product of the arbitration ecosystem. However laudable, the debate around diversity falls short of considering arbitral proceedings’ goal and arbitration users’ interests which imperils the institution’s legitimacy and future. It is therefore urgent to reassess our understanding of diversity and frame it back with litigants’ needs. This leads us to recognize the relevance of «°professional diversity°» and more broadly how this «°relevant diversity°» can reconcile users’ interests and the promotion of gender, ethnic and age diversity.

Navigating the Practicalities of Achieving Diversity in Arbitration

Available literature highlights that though most countries had their own form of private dispute settlement, similar to an unorganized form of arbitration, the development of modern international commercial arbitration, as it exists today, dates back to several concrete steps taken in the twentieth century by Western countries. Decades later, this Western influence continues to be highly pervasive, and is one of the important contributing factors for practitioners from such regions enjoying the greatest number of appointments as arbitrators. This has led to serious debates revolving around diversity and inclusivity in arbitral tribunals. Through this research paper, the authors attempt to examine the various factors that affect these ideas of ‘inclusivity’ as well as ‘diversity’, and how these ideas are consistent or inconsistent with the fundamental principles underlying arbitration. The paper discusses various initiatives that have been undertaken to increase all forms of diversity – of nationality, race, gender, culture, and so on- and then evaluates the effectiveness of the same. It also analyzes the idea of ‘familiarity’ in appointment of arbitrators, including the idea of an arbitrator’s previous experience, and if at all it would be fair to ask parties to give up on their autonomy while pushing for diversity in the tribunal. The research is premised on the hypothesis that there exists an inherent tension between these ideas. Given that most legislations recognize the autonomy of contracting parties are extremely essential, any initiative seeking to increase diversity might turn out to be a complex one. The authors also discuss, as a case study, the structure of the Indian judicial system, which in the absence of any definite setup has struggled to create and sustain diversity, particularly from the gender vantage. The paper concludes by discussing plausible solutions, structures and stakeholders, which if identified, as well as regulated efficiently, can play a significant role in pushing for such changes.

U.S. Courts’ Assistance to International Arbitrations. Recent Developments and Impact on Arbitrations Seated in Switzerland

For years parties to international arbitrations have used the discovery mechanism of § 1782 to seek the U.S. courts’ assistance in obtaining evidence from persons in the United States. Over time, a circuit split developed on whether § 1782 extended to private arbitral tribunals. This summer, the United States Supreme Court resolved the circuit split, holding that the scope of § 1782 did not encompass private international arbitration, but leaving the door open for arbitral tribunals imbued with some level of governmental authority. After providing a summary of the Supreme Court’s decision, the article focuses on the implications of this new precedent and its impact on participants to arbitration proceedings seated outside the U.S. with a focus on arbitrations seated in Switzerland.

Scope of counterbalancing public policy and execution of foreign arbitral awards in India

Public policy is an essential consideration in international arbitration, as well as domestic arbitration. In contrast to the latter, the former is becoming an increasingly restricted approach internationally, particularly in the context of enforcement of foreign arbitral awards. International arbitral tribunals should be cognizant of the problem, even if it is difficult while pronounce the judgement, because different jurisdictions may prioritize different aspects of public policy for a variety of reasons. This study will examine the many ways in which domestic courts have used the public policy concept in evaluating this exemption for the protection of state sovereignty in cases when a foreign award is incompatible with the law of the enforcing nation. Lastly, the author believes that the New York Convention of 1958's pro-enforcement bias can be strengthened by this paper's transnational perspective, which urges public policy to be justifiably compatible with the global public policy of a large community of nations. This perspective can also serve as a safety valve to ensure the effective enforcement of meritorious arbitral grants.

THE RECOGNITION AND ENFORCEMENT OF AGREEMENTS RESULTING FROM MEDIATION: AUSTRIAN AND UKRAINIAN PERSPECTIVES

Background: The recognition and enforcement of settlement agreements resulting from mediation are of key importance for the effectiveness of this alternative dispute resolution method. Austria is considered to be one of the pioneers of mediation practice in Europe, and its developments can be helpful and interesting for other countries, especially for Ukraine, which obtained the EU candidate country status. In Austria, there are three main possibilities for making such settlement agreements enforceable: a notarial deed, approval by the arbitration tribunal, and approval by the court. In cross-border disputes, enforceability can be reached within the Brussel Ia Regulation, the New York Convention, and national procedures for the recognition and enforcement of foreign court judgments and other acts. In Ukraine, there is the possibility of court approval and approval by arbitration of such settlement agreements. Methods: The present research is based on a comparative approach. The authors juxtaposed Austrian and Ukrainian national models of recognition and enforcement of agreements resulting from mediation. The comparison allows us to see both models’ strengths and drawbacks. The analytical method was used to interpret national legislature and international instruments. Using hypothetical models, the authors make a prognosis about the legal effects of recognition and enforcement of agreements resulting from mediation in cross-border disputes in national legal orders. Results and Conclusions: The authors propose amendments to the Ukrainian legislation, in particular, to enshrine in the CPC of Ukraine a new procedure of approval of settlement agreements resulting from out-of-court mediation and the possibility of the enforcement of such agreements as notarial deeds; to provide direct enforcement of arbitration awards; to introduce a new simplified procedure for the enforcement of judgments and other enforceable titles for the implementation of the Brussel Ia Regulation during the adaptation of Ukrainian legislation to the EU law; to adopt the Law on ratification of the Singapore Convention and enshrined simplified procedure for enforcement of the international settlement agreements resulting from mediation.

PROCEDURAL LAW ROLE IN THE INTERNATIONAL COMMERCIAL ARBITRATION: SOME REMARKS

Background: One of the most important features of international commercial arbitration is the autonomy of the will of the parties to a foreign economic dispute. Such autonomy consists of the possibility of independence to resolve issues of a dispute between the parties to such a contract and those issues that already arise during arbitration proceedings. One of the most significant issues that are the subject of autonomy of the will is the choice of the rules of procedural law. In this note, we studied the procedural rules governing the activities of international commercial arbitration, which influence the course of arbitration proceedings, since the arbitral tribunal usually refers to them when determining the number of key issues, starting with questions about whether to refer the dispute to arbitration or not, whether to determine interim measures and also with respect to the arbitral award itself. Methods: This study was based on an analysis of Ukraine’s national law and some doctrine; examples of implementation of the New York convention were analysed. Results and Conclusions: Although the parties’ freedom of choice is a generally accepted principle of international commercial arbitration, it can usually be limited by the imperative norms and public order of a particular country. The trend of moving the international arbitration practice away from using lex loci arbitri was underlined. This trend reflects the avonomy of the parties and can also be considered a significant challenge of lex loci arbitri.

An arbitration dilemma: party-appointed experts vs. tribunal-appointed experts. A comparative study

Arbitration, as an alternate method of solving disputes, is greatly reliant on its capacity to offer an efficient procedure, in terms of costs involved and time consumed to reach a decision on parties’ disputes. Taking of evidence in a cost and time effective manner is, therefore, a vital issue, one that the parties and the arbitral tribunal consider with the utmost care; it is the screen that reflects the image that the parties are trying to credit as being the truth. Expert witnesses are often called upon to present a professional view on technical or economic aspects that cannot be decided by the arbitral tribunal without proper expert information. The object of this study is to offer a comparative analysis of the choices that the parties and the arbitral tribunal have to make in taking expert evidence as well as the implications of these choices.

Damages Awards in International Investment Arbitration and the Question of Fair Compensation

When an arbitral agreement freely entered into between a host nation and a financially stronger multilateral foreign organization breaks down, arbitration is the acceptable mode of settlement of the disagreement. This is in line with the Nigerian Arbitration and Conciliation Act, which makes applicable the convention on the Recognition and Enforcement of Arbitral Awards (New York Convention) on awards made in Nigeria arising out of international commercial arbitration. The objective of this paper is to seek a balance between protecting foreign investments and shielding the economies of host States from destruction through award of excessive damages. The doctrinal approach of qualitative research methodology was adopted, which enabled the interrogation of previous literature that deals with the issue of fair compensation and the role equity should play in international investment arbitration. This library-based research focused on analysing primary data such as cases, statutes and conventions and secondary data in text form. The research methodology adopted helped describe and contributed to the understanding of the concept of damages awards in international investment arbitration and the place of equity in awarding damages. The paper concludes that applying equitable principles will help arbitral tribunals arrive at more appropriate equitable damages based on fair compensation. The implication of the study is that international investment arbitration tribunals may intentionally take into account the actual amount of money invested or expended towards a project in quantifying damages thereby endeavouring not to cross the line of fair compensation. Keywords: Damages awards, Equitable principles, Fair compensation, International investment arbitration, Justice DOI: 10.7176/JLPG/81-02 Publication date: November 30 th 2022

The Enrica Lexie Incident 판정과 함의

On 21 May 2020, the Arbitral Tribunal under Annex VII to the United Nations Convention on the Law of the Sea in respect of the Enrica Lexie Incident adopted its Award. It was notified to the Parties on 9 June 2020. On 2 July 2020, the Arbitral Tribunal published the operative part(dispositif) of the Award on the PCA Case Repository.
 According to Italy, the dispute arises from an incident that occurred on 15 February 2012 approximately 20.5 nautical miles off the coast of India involving the “Enrica Lexie”, an oil tanker flying the Italian flag, and India’s subsequent exercise of criminal jurisdiction over the incident and over two Italian marines from the Italian Navy. According to India, the incident in question concerns the killing of two Indian fishermen on board an Indian vessel named the “St. Antony”, and India’s subsequent exercise of jurisdiction. It is alleged that the two Italian marines aboard the “Enrica Lexie” killed the fishermen.
 Author would like to explaine that there is a sligltly different noteworthy point on this Case. The point is that the Arbitral Tribunal placed much emphasis on the statements of the individuals involved in the case, when the Arbitral Tribunal deal with the fact findinding and jurisprudence. This paper aims to focus on how the Arbitral Tribunal handles the testimony of the individuals involved in this case in the process of deleberating the case of Enrica Lexie Incident.

Thailand’s debut in investment treaty arbitration: the curious case of Walter Bau and its lessons for participants in international investment law

Abstract Thailand’s first experience with investment treaty arbitration has not been a pleasant one. Nevertheless, it offers important lessons to States, foreign investors, and arbitral tribunals regarding their respective participation in the process of decision-making. First, States must be meticulous in concluding investment treaties while bearing in mind that their subsequent practice affects the way those treaties are interpreted and applied. Second, foreign investors’ due diligence when making investments and their selection of a suitably qualified lawyer to represent them in arbitral proceedings will both affect the outcome of their case. Third, arbitral tribunals’ understanding of international law is critical for the credibility of investment treaty arbitration and will contribute to its legitimacy—or lack thereof. In fulfilling their role, arbitral tribunals should consider economic realities within the confines of an applicable investment treaty. Furthermore, to determine their jurisdiction ratione materiae and jurisdiction ratione personae for non-ICSID arbitration, they should adopt the single keyhole approach, following the definition of ‘investment’ and ‘investor’ given by the parties as lex specialis and acting in accordance with the principle of procedural economy.

Towards a bumpy ride into the sunset: on the mutual termination of IIAs and their sunset clauses

Abstract Sunset clauses in International Investment Agreements (IIAs) have recently become the subject of renewed attention after the European Commission and European Union (EU) Member States announced their intention to abrogate sunset clauses found in intra-EU IIAs as part of their plan to end existing intra-EU IIAs. Sunset clauses (or survival clauses) are provisions commonly found in IIAs that extend their application for a given period of time after their termination. This article reflects on the consequences of terminating IIAs and simultaneously depriving sunset clauses of their legal effects, and explores how investors could nonetheless attempt to bring disputes arising out of their investments before arbitral tribunals.

Transnational arbitration agreements as contracts: in search of the parties’ common intention

Abstract Although agreements to arbitrate constitute contracts that are distinct from those in which they are contained, the practice of arbitral statutes, international instruments, and arbitral tribunals is to conflate the parties’ common intention to be bound with the particular form required of the arbitral agreement. This sui generis (conflated) contractual nature is unique to arbitral agreements and serves the transnational character of international arbitration. The required form, which is conflated with the parties’ common intention, is meant to serve a procedural, rather than a substantive/contractual purpose, namely the triggering of the jurisdiction of the arbitral tribunal. All this is in sharp contrast with the rigid assessment of offer, acceptance and common intention to be bound that permeates contracts under national laws, all three of which are distinct actions. It further serves as evidence that transnational law does not neatly distinguish between substantive and procedural law, with contracts being an inextricable part of this transnational legal process.

‘Forum of Necessity’: Using French Law’s ‘Juge d’appui’ in Foreign-Seated Arbitrations as a Cure for Denial of Justice

This article explains how French arbitration law enables a party to turn to the French courts for arbitrations seated outside of France, when faced with the risk of denial of justice. It describes the jurisdiction and role of the French ‘juge d’appui’ (or ‘supporting judge’), in preventing a denial of justice in arbitrations that bear no connection to France. An analysis of French arbitration law and jurisprudence demonstrates that the French supporting judge is an effective solution to prevent a denial of justice when the arbitration agreement does not provide for a supporting judge. juge d’appui, judge acting in support of arbitration, supporting judge, denial of justice, defaulting party, appointment of an arbitrator, constitution of the arbitral tribunal, jurisdictional immunity, Agreement on Promotion, Protection and Guarantee of Investments among Member States of the Organisation of the Islamic Conference, OIC Treaty, Secretary General of the OIC, most favoured nation clause

Are FTA’s making the World Less Free? A Case Study of TPP

Abstract On January 23, 2017, right after assuming presidency, US President Donald Trump did good on his promise and signed the executive order that withdrew USA from the very agreement that it commenced the negotiations for: Trans Pacific Partnership (TPP). The unratified multinational trade agreement encompassed 12 countries which accounted for %40 of the world’s GDP and over 800 million people. On a broader scope, TPP is often affiliated with two other trade deals; Transatlantic Trade and Investment Partnership (TTIP) and Trade in Services Agreement (TiSA) both of which in terms of content resemble a lot that of TPP. Given the fact that TTIP and TiSA are not complete and not entirely disclosed with the public, we shall be exclusively focusing on TPP. TPP has been subject to many controversies. But particularly the notion that TPP would enable corporations to sue governments in private arbitration tribunals over lost profits has drawn much attention. In this article we shall be investigating whether there is some truth to these allegations. Providing reference from the articles of the agreement, we shall be discussing the qualities of TPP’s judicial reforms. But firstly, in order to introduce the reader to the subject; we will be providing with some context, to properly frame the subject, and with some information about the nature of these agreements. Secondly, we shall be addressing our main issue. In addition, we will be questioning the framework within which the agreements are officially presented. Finally, a conclusion that compromises the author’s assessment of the case will be provided.

National Mechanisms of the Enforcement of Agreements Resulting from Mediation: EU Experience and Ukrainian Perspectives

Topicality. The article addresses domestic mechanisms for the enforcement of agreements resulting from mediation, which is relevant from both theoretical and practical points of view, because the existence of such mechanisms is a relevant factor of the effectiveness of mediation in particular jurisdiction. The purpose of the article. The purpose of the article is to analyze the national mechanisms for the enforcement of agreements resulting from mediation in the EU Member States and to develop relevant proposals for Ukraine. Research methods. In the article the author uses general philosophical, general scientific and special research methods, in particular, dialectical, system-structural, logical and comparative legal methods, method of analysis and synthesis. Results. Based on the analysis of the provisions of Directive 2008/52/EC of the European Parliament and of the Council of 21.05.2008 on certain aspects of mediation in civil and commercial matters, the author concludes that Member States enjoy a wide discretion on the issue of implementing the provisions of the Directive and numerous different approaches may be embraced with a view to ensure enforceability of agreements resulting from mediation. Based on the analysis of the legislation of the EU Member States, the following mechanisms for the enforcement of agreements resulting from mediation are identified: a) recognizing the agreement as an enforceable civil law contract; b) making the agreement enforceable through the approval by the court; c) making the agreement enforceable through the approval by the arbitral tribunal; d) making the agreement enforceable through the approval by the notary (notarial deed); e) making the agreement enforceable through the approval by some other specially created bodies; f) automatic enforcement. For Ukrainian Law the author suggests, first, diversification of mechanisms for judicial approval of agreements resulting from mediation and, second, allowing notaries to approve agreements resulting from mediation. The significance of the results. The article is addressed to legal scholars and practitioners, mediators and students of higher law schools.

Regulation of Interest in International Contracts Under UN Convention on Contracts for the International Sale of Goods

The 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG) allows for claims of interest on damages, delayed payments or the price already paid (refunds) in articles 78 and 84. However, these articles have become the subject of considerable academic as well as judicial discourse. The question of interest remains a thorny issue in the Convention, with questions raised about whether in the first place, it is an issue that falls within the scope of the Convention. This article argues that because the CISG provides a platform for the uniform interpretation and enforcement of entitlements to interest in international sales, parties to international sales transactions should clearly specify in their contract the default governing law to govern claims for interest and other supplemental damages to minimise the risks that judicial and arbitral tribunals applies rules that expose them to significant claims. The CISG provides an avenue for the application of general principles of international sales law, and domestic legal provisions, hence, promoting flexibility. But the parties must circumscribe this flexibility to limit their exposure to significant interest claims.

Local anxieties and world peace: Osias Parnes' late Habsburg career in international peace1

AbstractThis article examines the career of Osias Parnes, a little‐known figure in the Austrian peace movement and argues that, although his plans for world peace were ultimately inconsequential, his ideas are reflective of the way in which international visions actually encapsulated local preoccupations. Born into a wealthy Jewish family in the multiethnic and multiconfessional region of Galicia in the middle of the 19th century, Parnes would devote the latter half of his life to propagating an idea for an armed arbitral tribunal and a system of kindergartens to teach children a world language. Throughout his peace career, it is his concern at the nationalist disintegration of his homeland which dominates his ostensibly international visions.

4A_438/2018, Urteil vom 17. Januar 2019 [Arbitral tribunal not required to hear a witness where the party calling him does not explain what further information beyond those in the written witness statement could be obtained during the hearing

4A_438/2018, Urteil vom 17. Januar 2019 [Arbitral tribunal not required to hear a witness where the party calling him does not explain what further information beyond those in the written witness statement could be obtained during the hearing

Article: European Union Law and Global Investment Regime: Unshell Proposal as a Next (Mis)step of the EU Against Investment Treaty Arbitration?

This article addresses a largely unchartered interdisciplinary research area of the global investment regime and European Union (EU) law with an emphasis on the prevention of international tax avoidance in the EU. It focuses on the intersections between newly proposed anti-tax avoidance legislation by the European Commission that is known as the Unshell Directive (UD) and international investment agreements (IIAs). In this article, the author sets a stage for the intersections by discussing the Court of Justice of the European Union (CJEU) case law and the commission’s actions aimed against the most powerful enforcement tool in the global investment regime, i.e., the investor-state dispute settlement (ISDS) mechanism, by attempting to render it illegal and ineffective within the EU. The corresponding reactions from the arbitral tribunals are also addressed. The discussion evolves to identify and analyse the interplay between the proposal of the UD (also the Unshell Proposal or UP) and the IIAs to reveal that the impact of the former on the latter is ambiguous by design in order to minimalize legal certainty vis-à-vis protection of foreign investment in the EU via shell entities. This constitutes a foundation for potential, seismic tensions between the UD and the global investment regime that are not beneficial for marketing and development of the EU internal (single) market and may thus weaken the EU’s global competitiveness in the area of foreign investments. international investment law, EU law, good faith, ISDS, tax avoidance, shell entities

Non-Precluded Measures (NPM) in Bilateral investment Treaty (BIT) (An appraisal study)

Non-precluded measures (hereinafter NPM) clauses have become a problematic in the modern international investment regime. As an integral aspect of attempts to recalibrate the publicprivate balance in investment treaties, these clauses are intended as a corrective to the proinvestor interpretations of early arbitral tribunals. They provide for the primacy of public policy over investment protection standards under certain conditions. This paper attempts to identify the proper way in the drafting of NPM clauses and identify their common elements. It will examine the terms that must be met in order that host states can have resort to them, as well as the role that is provided  or denied  to arbitrators in circumscribing the suitability of an impugned measure in relation to the objective being pursued. Furthermore, recent investment arbitrations have pointed out the latent interpretive ambiguities that can be in NPM clauses. In fact, it will be argued that while NPM clauses do raise some difficulties with respect to extending the policy space of contracting parties, they are slightly  effective in ensuring that public policy is a permanent feature of arbitrators’ matrix of decisionmaking.