Arbitration Acts Research Articles

International Arbitration Agreements in Canada Post-Uber

In Uber v. Heller – a case involving an employment class action subject to an international arbitration agreement – the Supreme Court of Canada decided three issues that threatened to undermine the enforceability of international arbitration agreements in Canada. The Court: (1) read the scope of the Canadian International Commercial Arbitration Acts narrowly; (2) created an exception to the competence-competence principle; and (3) relaxed the test for invalidating arbitration agreements on unconscionability grounds. At the same time, Uber was decided in a highly specific factual context and its ultimate impact on the enforcement of international arbitration agreements was largely left to be determined by lower courts in future cases. This article examines two such cases involving consumer class actions subject to international arbitration agreements. The article analyses the courts’ application of Uber and its effect on their reasoning and on the outcome of these cases. While it is difficult to predict how Uber will unfold in the lower courts over time, the two cases examined in this article suggest that Uber is unlikely to affect the enforcement of most international arbitration agreements in the context of consumer class actions – perhaps the context most akin to that of Uber – let alone in more traditional commercial contexts. Canada, international arbitration agreements, commercial, Uber v. Heller, employment, consumer, class action, enforcement

The Judicial Control Enforced over the Formation of the Arbitration Body in Pursuant to the Jordanian Arbitration Law

Nowadays, arbitration has been receiving much attention. Such attention can be manifested through enacting national legislations and international agreements to regulate it. Such legislations and agreements address the way of choosing arbitrators and the conditions of obtaining membership in the arbitration body. The judicial control is enforced on the arbitration process, because the judiciary is considered the one that has jurisdiction over the settlement of disputes. Such control is enforced to ensure that the arbitral awards are unbiased and impartial. It’s enforced to reach a sound arbitral award that is free from faults. It’s enforced to ensure that nothing shall affect the formation of the arbitration body and its arbitral award.
 
 The present study aimed to explore the extent of control enforced by judiciary on the appointment and dismissal of arbitrators and the consideration of the assignment of arbitrators as void. It aimed to identify the extent and limits of this control. Thus, it aimed to identify the way in which the Jordanian legislator regulated these matters. The researchers of the present study adopted an analytical approach to analyze the legislative texts listed in the Jordanian arbitration act and the comparative acts. They also analyzed the relevant judgments issued by the Jordanian court of cassation.

Binding non-signatories to arbitration agreements—who are persons ‘claiming through or under’ a party?

Abstract The International Arbitration Acts of the UK, Australia, Singapore, and Hong Kong recognize that third persons who are non-signatories to an arbitration agreement but who are ‘claiming through or under’ a party to the arbitration agreement have the status of a party.1 In the UK and Singapore that status means not only that court proceedings involving such non-signatories may be stayed in favour of arbitration but it also binds them to an award. In Hong Kong that status binds non-signatories to an award. In Australia, that status affects whether court proceedings involving non-signatories are stayed in favour of arbitration. A recent judgment by a majority of Australia’s highest appeal court, the High Court of Australia, in Rinehart v Hancock Prospecting Pty Ltd2 has taken a different approach to that prevailing in England as to the range of persons who are capable of ‘claiming through or under’ a party to the arbitration agreement, thereby significantly expanding the range of disputes involving non-signatories that must be referred to arbitration.3 The issue has not arisen for determination before appellate courts in Singapore or Hong Kong. Rinehart therefore represents an important development in common law jurisdictions, compelling arbitration between a signatory and non-signatory to an arbitration agreement.

The Reform of Commercial Arbitration in Australia: Recent and Prospective Developments

International commercial arbitration (ICA) in Australia is growing, albeit not geometrically. These developments are attributable in part to new legislation adapted by the federal, state and territory governments that make arbitration in Australia more attractive to domestic and foreign parties. These include the preservation of the autonomy of the parties to choose their preferred form of arbitration, whether institutional or not, the fact that Australian courts are firmly committed to the principles of the rule of law, and that ICA awards are enforced consistent with international standards and laws that are incorporated into Australian federal, state and territorial law. Australia has ratified both the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitration Awards and the ICSID Convention in its domestic law. Both are included in section 40 of the International Arbitration Act 1974 (Cth) (IAA). Australia’s accession to the New York Convention is without reservation and extends to all States and Territories within the country. Australia has an established record of recognizing international commercial arbitration. It was one of the first to adopt the 2006 amendments to the 1985 United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration (the Model Law). It has long endorsed the principles embodied in that Model Law, including protection of the autonomy of parties to arbitration, flexibility in the conduct of arbitration and greater uniformity in arbitration across national jurisdictions. These tenets of arbitration were incorporated into the IAA by the 2010 amendment, as a reflection of international best practice. In accordance with the 2010 amendments to the IAA, disputing parties can no longer choose to exclude the application of the Model Law insofar as it is incorporated into the IAA. The IAA affirms the finality of arbitration awards and limits the grounds for judicial review. It also builds on the authority of arbitrators to grant interim awards and creates a regime to ensure confidentiality. The core principles regarding commercial arbitration embodied in the 2010 amendment are also reflected in uniform legislation across all Australian jurisdictions. They affirm the legitimacy of arbitration as a mechanism for dispute resolution and the significance of Australia as a center for the resolution of disputes. However, ICA in Australia continues to face concern over what are sometimes perceived to be protracted arbitral proceedings that are both dilatory and costly. The author has responded to these criticisms in a co-authored article which argues that comprehensive proceedings are often necessary in deciding complex arbitrations and the allegedly ‘judicialisation’ of the arbitral process is often misconceived and over-stated. In addition, there has been a signifi cant increase in resort to institutional arbitration in ICA proceedings, notably with the adoption of new Arbitration Rules by the Australian Centre for International Commercial Arbitration (ACICA) and the establishment of the Australian International Dispute Centre (AIDC). There have also been increases in arbitrations since the revision of the IAA in June 2010 and recent amendments to domestic Commercial Arbitration Acts (CAAs). While Article 1(3) of the UNCITRAL Model Law stipulates that it only applies to international commercial arbitration, and not to domestic arbitration, the recently revised CAAs of states across Australia now replicate the Model Law with some variations. This chapter will focus on the Australian legal system and its role in arbitration. It will examine the development of ICA in Australia and the 2010 amendment to the IAA. It will consider the role of the Australian Centre of International Commercial Arbitration (ACICA) as an exemplary centre governing commercial arbitration. It will focus on Australia’s role in promoting arbitration within the Asia Pacific region, of which it is an integral part. It will explore Australia’s whole-hearted embrace of international arbitration as a viable alternative to court proceedings. Finally, it will support the conservative and formalist underpinnings of current arbitration reforms, including the need to elaborate on them, and render them more dynamic in operation.

Arbitrability under the new Brazilian arbitration act: a real change?

Since the enactment of the 1996 Arbitration Act, the arbitrability of disputes in Brazil followed the general rule in which disputes involving disposable patrimonial rights could be submitted to arbitration. In 2015, the Brazilian legislative enacted an Act amending some of the rules of the 1996 Act. The general approach to arbitrability did not change but there was an attempt to introduce provisions to the act regarding the arbitrability of disputes concerning consumer law, labour law, corporate matters, and the participation of the state or state-owned companies in arbitration. The first two efforts failed and the last two prospered. This article explores if the changes made to arbitrability by the new Act were actually necessary in face of the existing doctrinal and jurisprudential understanding of arbitrability of disputes in Brazil. It argues that the general approach to arbitrability already addressed the innovations brought by the new statute. As a result, it asserts that the changes in the law were not a novelty as the approach to arbitrability of disputes in Brazil was already settled by the 1996 Act as well as the case law.

Multi-tiered sports arbitrations in the Republic of Serbia

Contrary to popular perception of the legal profession, multi-tier arbitrations are neither new, nor uncommon phenomenon. With growing need of the community to arbitration becomes real, not just theoretical, alternative to judicial resolution of disputes, arbitration accepts more judicial characteristics, among which is one of the most important and at the same time controversial - multi-tiered dispute resolution. Multi-tiered arbitration proceeding is traditionally present in commercial and investment arbitrations. However, in recent decades, significant international arbitration institutions introduced the option for consensual review of arbitration awards. Sports law is an area where, by the end of the twentieth century, the phenomenon was unnoticed present. The international sports community, as a precondition for the survival of autonomous settlement of disputes, choose dispute settlement by arbitration, but with a number of significant modifications. One of the most specific is multi-tiered arbitration, especially regarding the most important cases. The main reason for such behaviour is the aspiration of the international sports community, following the example of national courts, to organize efficient, quality and final way of resolving disputes within its jurisdiction. Permanent Court of arbitration of the Olympic Committee of Serbia follows the mentioned logic, thanks to the provisions of the Sports Act and contrary to the Arbitration act, and introduces the possibility of reviewing its decision in front of the Court of arbitration for sport based in Lausanne.

Choice of Law: Arbitrating Insurance Dispute Clause

The issues relating to insurance are likely to be settled between insured and insurer. But now a days the disputes are arising for claims in adequate and insurer is denying some because commercial policies refers to many clauses during arbitration. The applicable law is Federal Arbitration Act or state arbitration Acts for settling for proper arbitral agreement. The choice of law prevails the dominance and applicability. Federal Acts for U S A courts while state Acts for individual countries at domestic level. The language is also important for both the parties as substantive law. In regard to applicability of law U.S supreme courts decisions I referred the case of volt and Mastrobuono located in California it was incorporated in California procedural rule for arbitration. In this case in protostorm, LLC Vs Anton Elli the Federal District court for Eastern District of New York tackled issue and Preston court rejected argument due to 2 reasons that nothing in the parties, and in volt the plaintiff never argued that incorporation of private arbitration rules tramped choice of law. It obliges that circuit precedent raises the bar wishing to enforce the choice of law provisions in arbitration agreements. As the conclusion to enforce a choice of law provision in second circuit. In many cases it is worthwhile to undertake analysis as to application of Federal or state arbitration law for outcome of that issue.

Judicial review under the UK and US Arbitration Acts: Is arbitration a better substitute for litigation?

This paper will examine and analyse the respective arbitration acts of England and the U.S. with a view to determining which one of the jurisdictions provides a better system for confirmation, vacation and modification of arbitration awards. In order to attain this objective, the central issues will be whether judicial review is adopted in any of these jurisdictions, and if so, whether this adversely affects the speed and costs of arbitration. Consequently, in the first section, the US Federal Arbitration Act will be examined in order to determine the answer to the former question. In this respect, particular attention will be paid to the recent Supreme Court decision in Hall Street Associates v. Mattel Inc, inasmuch as the ruling has made a drastic impact on this matter. In this section, it will be concluded that the U.S. law does not recognise judicial review for error of law, and the U.S court’s reliance on the “manifest disregard of law” as a ground for the vacation of an award has now considerably reduced with the highlighted decision.In the second section, the legal position under English law will be examined in light of the UK Arbitration Act. As a consequence, the paper will reveal the fact that the English approach pertaining to this issue is strikingly different from that in the U.S. law, as the English courts still retain the right to review the award for error of law. After setting forth the parties’ positions in both jurisdictions, which jurisdiction is favourable for the parties seeking to arbitrate with less costs and delays will be discussed.

It Is Time to Unseal Sealed Offers in International Arbitration: As a Negotiation Strategy or Pressure Tactics?

It Is Time to Unseal Sealed Offers in International Arbitration: As a Negotiation Strategy or Pressure Tactics?

The 2010 Amendments to the International Arbitration Act: A New Dawn for Australia?

On 6 July 2010 Royal Assent was given to amendments passed by the Australian Federal Parliament relating to the International Arbitration Act 1974 (Cth) (IAA). These were the first substantial changes to the IAA for over 20 years and consequently warrant close scrutiny. Along with some other innovations, they follow most of the 2006 revisions to the 1985 UNCITRAL Model Law on International Commercial Arbitration (Model Law), which has been particularly popular for Australasian jurisdictions updating their arbitration legislation. The amended IAA also provides the agreed core for Australian states and territories updating their Commercial Arbitration Acts (CAAs), although they adopt some variants given that their focus is on domestic arbitrations. This paper considers the amended IAA’s aims, writing requirements for arbitration agreements, enforcement of foreign awards, exclusion of the Model Law, interim measures, confidentiality, other substantive matters, and the temporal application of the 2010 amendments. It concludes that their scope is somewhat limited and unadventurous, but should significantly enhance the legal regime for international arbitration in Australia.

La Reforma Parcial de la Ley Española del Arbitraje

ABSTRACT: With the reform of the current arbitration act, Spain tries to unify the criteria of the case law in all kind of questions related to arbitration, concentrating the competence in the High Courts of the Autonomous Regions, remaining the first instance courts the only competent for the enforcement of arbitral awards. The corporate arbitration for the solution of disputes in the so called "sociedades de capital" and with its shareholders is expressively ruled. It is no longer necessary that in arbitration proceedings according to law, the arbitrator is a lawyer admitted to a bar, being sufficient to be jurist. The previous activity as mediator is not compatible with the arbitrator. The arbitral award always need to have a motivation, not being possible another agreement between the parties. In case of an institutional arbitration procedure, the institution has to procure for the capacity and the independency of the arbitrator, who also has to contract an insurance police. The non-compliance with the six months period for rendering the award, which is maintained, does not affect neither the validity of the arbitration clause nor the award. In case of an insolvency procedure, in principle the arbitration commitment is maintained. Finally, the law provides for a mechanism for the resolution of disputes between the General Administration of the State and its different entities.

Reform of the Australian Domestic Arbitration Acts - It's Time

Article from IAMA's The Arbitrator and Mediator journal, where Albert Monichino calls for reform of the domestic arbitration regime in Australia.

Arbitration in Denmark: The Parties’ Influence on a Danish Arbitration Case

Having lagged behind in its arbitration rules for 30 years, Denmark has become an attractive country in which to conduct arbitration. Denmark now has one of Europe’s most modern and streamlined arbitration acts, and if they so wish, the parties can exert a substantial influence on how the case is handled. The author, who often acts as arbitrator in Danish and International arbitration cases, will analyse the options which the parties have under the new Danish arbitration act (hereinafter called the AA) for influencing how their case is handled, and thus for making this process more efficient. This article thus analyses the degree of party autonomy associated with the choice of arbitration in Denmark. It will be shown that the AA provides a very broad framework for autonomy, and the article will seek to balance the parties’ desire for efficiency in the handling of an arbitration case against the fundamental protection of legal rights. The article concludes by listing 18 specific areas in which autonomy can be used to advantage when pursuing arbitration in Denmark. The law is of course often a balance (jus) between opposing interests. In this case the opposing interests can be defined as 1) the desire for an efficient case handling, and also 2) the desire to protect the parties’ legal rights. By opting for arbitration, the parties must be said to have expressed a desire for streamlining and speedy handling which implies that justice delayed is justice denied, and which therefore often also implies the waiving of certain guaranteed legal rights – although the parties and their representatives may not directly experience this as a waiving of rights. The following is an attempt to define the point of balance between the two opposing interests in more detail, and the article concludes at the practical level with an overview of arbitration areas to which party autonomy applies.

Review of Substantive Reasoning of International Arbitral Awards by National Courts: Ensuring One-Stop Adjudication

REASONING IS required for most international arbitration awards, whether under the applicable arbitration rules or law.1 The reasoning deals with various issues. It deals with the jurisdictional and procedural issues in the arbitration, as well as the evaluation of the factual and legal positions of the parties. The evaluation of the factual and legal position of the parties is referred to in this article as the ‘substantive reasoning’ to distinguish it from the reasoning relating to jurisdiction and procedure, or the ‘jurisdictional or procedural reasoning’. Within the area of substantive reasoning, national courts have perhaps a more natural tendency to accept the primacy of the arbitral tribunal with respect to factual issues, as it corresponds to the role of some courts of first instance in the national court system. For legal reasoning, however, national courts – and indeed some Arbitration Acts such as the English Arbitration Act of 1996 – appear hesitant to accord the last word to the arbitral tribunal, at least as to matters of local law.

New Arbitration Acts in Denmark and Spain. The Application of Transnational Rules to the Merits of the Dispute

New Arbitration Acts in Denmark and Spain. The Application of Transnational Rules to the Merits of the Dispute

Arbitration: Commentary and Sources by Ercus Stewart

Arbitration: Commentary and Sources, by Ercus Stewart. Published by First Law Ltd (2003, 359 pp. + Appendices 176 pp. + index). Hardback. ISBN 1-904480-06-3. This book marks the recent adoption by Ireland of the UNCITRAL Model Law in the form of the Arbitration (International Commercial) Act 1998. The 1998 Act has amended the previous arbitration statutes and, in particular, domestic arbitration in relation to interest and small claims. There remain, however, other statutes dealing with arbitration in specific contexts, such as, industrial relations and employment law. As regards private commercial arbitration in Ireland, the main statutory source remains the Arbitration Act 1954 as well as the amendments in the Arbitration Acts 1980 and 1998. The 1998 Act supports other local initiatives to attract international arbitration to Ireland, such as the opening of the American Arbitration Association's international office in Dublin, called the International Centre for Dispute Resolution (ICDR). This book is a very enthusiastic treatise designed to promote Ireland …

Arbitration Act 1996: A Practical Guide by Margaret Rutherford and John H. M. Sims

Arbitration Act 1996: A Practical Guide by Margaret Rutherford and John H. M. Sims. Published by FT Law & Tax (1996, xxix and 370 pp. incl Introduction, Foreword, Table of Cases, Table of Statutes, Table of Statutory Instruments, Appendices and Index) . Softback. Price UK£40 ISBN 0-85121-982-9. In order fully to understand the fundamental changes which the Act has brought about, the authors considered it appropriate to explain why those changes were necessary, and sometimes even essential. Consequently, in Part I the history of the Arbitration Act is set out. This is followed by a brief introduction to arbitration in general. Part II is the most substantial part of the book and consists of a section-by-section commentary on the new Act. The appendices include the text of the 1996 Act, a checklist for preliminary meetings and a list of arbitrator's powers and duties under the 1996 Act. In their overview of the history of the Arbitration Act, the authors first describe the history of arbitration law in general. This is followed by a short review of the Arbitration Acts of 1950, 1975 and 1979 and the most essential changes contained in these Acts. Reference is also made to a number of miscellaneous Acts concerning arbitration such as the Consumer Arbitration Agreements Act 1988. Arbitration was ripe for a reform. A comprehensive and coherent statement of the principles and practice of arbitration law was deemed necessary, both for domestic and for foreign users. In this context, the authors describe the discussion concerning the adoption of the UNCITRAL Model Law and the final rejection thereof. An interesting description is given of the large number of private initiatives such as the Marriott Group and the unique and extensive consultation with users. These include the working conferences set up by Professor John Uff and Dr Julian Lew at King's College, London. The history of the Act ends …

Domestic Arbitration: Practice in Continental Europe and its Lessons for Arbitration in England

ARBITRATION OF commercial disputes in the widest sense has a long history, not only in England, where already at the end of the 17th century legislation was adopted dealing with the law of arbitration, but also on the Continent. This early English legislation, as well as the venerable Arbitration Acts of 1889 and 1934, demonstrates the important role which arbitration always played in England. I have not tried to conduct the necessary research to ascertain the roots of arbitration legislation on the Continent which, however, do go back to the Middle Ages. The basic difference between the Continent and England lies in the way the law was formed. On the Continent, arbitration laws were usually drafted in the form of a separate chapter of the Code of Procedure. The law at any given time was therefore relatively clearly defined, whereas, until the Arbitration Act 1996, to use the words of...

The UNCITRAL Model Law: New Draft Arbitration Acts in Germany and Sweden

### (a) The success of the Model Law The UNCITRAL Model Law on Arbitration was adopted by the United Nations on 11 December 1985 as a recommendation to the states that they take account of it when changing existing or enacting new legislation dealing with international commercial arbitration. Meanwhile, this recommendation has been followed by an increasing number of nations, including, e.g . Canada (‘Commercial Arbitration Act’ dated 17 June 1986), Australia (‘International Arbitration Amendment Act 1989, in force since 12 June 1989) and some US States.1 In Europe, the Model Law has been adopted as a pattern for modern arbitration acts only in a few countries: Bulgaria (‘Law on International Commercial Arbitration’, dated 29 July 1988), Cyprus (‘The International Commercial Arbitration Law’ of 1987), the Russian Federation (‘Law on International Commercial Arbitration’, dated 7 July 1993) and Scotland (‘Law Reform (Scotland) Act 1990, section 66, Schedule 7, in force since 1 January 1991). However, of those countries in which, traditionally, most of the arbitration proceedings take place, for example England and Switzerland, none has so far adopted the Model Law entirely or partially.2 Therefore, it is particularly interesting to note, that two states of Western Europe, Sweden and Germany, are considering following the recommendation given by the UN 10 years ago. ### (b) The Situation in Germany The law on arbitration in Germany is more than 100 years old. The provisions that regulate domestic and international arbitration are part of the Act on Civil Procedure (Zivilprozesordnung, ZPO) which was enacted in 1877 and amended in 1930 and 1986, but only with respect to some non-essential issues. The ratification of international treaties such as the 1958 New York Convention and the ongoing modification of the present act by case law of the Budesgerichtshof, makes if difficult and even impossible for foreign lawyers to get reliable knowledge of the German law on arbitration. …

Gender, Household and Community Politics: The 1890 Maritime Strike in Australia and New Zealand

Introduction We know a great deal about the Maritime Strike of 1890. For fifty years it has stood at the centre of labour historiography, debated and celebrated on both sides of the Tasman. Nor is that surprising. The strike was phenomenally large by nineteenth century standards; 50,000 Australian workers were involved and perhaps as many as 10,000 New Zealanders. Its title suggests a misnomer. Though the strike began with the Maritime unions it spread to include shearers, miners, labourers, counters, storemen and railwaymen. The issues in dispute were just as daunting. New Zealanders joined the strike believing an attempt was being made 'to crush out unionism in Australia'. Their participation was a testimony to the strengthening federation of Australasian labour, a federation which embraced workers on both sides of the Tasman. It was also an act of reluctant self interest: ' [we must] help our cousins in Australia', one labour journal wrote 'because if the ship owners . . . succeed [there], New Zealand's turn will surely follow'.l The consequences of the strike are seen as even more significant. In both countries the strike is described as a catalyst for independent labour repre sentation. It is the single most important force behind the Arbitration Acts and linked to the progressive legislation which marked Australasia as a social laboratory. The consequences for the union movement were not so creative. The Maritime Strike reversed a generation's achievements: unions collapsed, federations failed, strikers fell prey to the 'terror' of victimisation.2 But for all the controversy surrounding this event, our knowledge of the dispute is alarmingly incomplete. The historiography of the Maritime Strike is overwhelmingly male in its focus.3 It was men, we are told, who refused