Arbitral Awards Research Articles

Arbitral Award of Oct. 3, 1899 (Guy. v. Venez.) (Provisional Measures) (I.C.J.)

On December 1, 2023, the International Court of Justice (ICJ) delivered a unanimous order on provisional measures in Arbitral Award of 3 October 1899 (Guyana v. Venezuela) (Provisional Measures Order). The ICJ indicated two provisional measures. It ordered first that, pending a final decision in the case, Venezuela shall refrain from taking any action that would modify the situation that currently prevails in the relevant disputed territory (the current situation being that Guyana administers and exercises control over the territory) and, second, that both states shall refrain from any action that might aggravate or extend the dispute before the ICJ.

Azərbaycan Respublikasinda arbitraj mübahisələrin həllinin alternativ üsulu kimi

The article analyses in detail the recently adopted Law on Arbitration in the Republic of Azerbaijan, which was intended to replace the Law on International Arbitration. The Law sets out the categories of disputes subject to arbitration, the criteria for the selection of local arbitrators and the rules for the recognition and enforcement of arbitral awards. Particular attention is paid to the development of a system of domestic arbitration as a means of reducing the judicial burden, as well as harmonising the country's arbitration practices with international standards. The article also extends the discussion by raising questions about the history of arbitration, beginning with its origins as a method of resolving conflicts without involving the judicial system. The evolution of arbitration is examined in detail, emphasising its ancient roots and its gradual development in many cultures and legal systems. Special emphasis is placed on the term "arbitration courts" in the Republic of Azerbaijan, exploring the specifics and peculiarities of the local context of arbitration. In addition, the article touches upon the important comparison between arbitration and mediation in our state, highlighting the differences and similarities between these two methods of alternative dispute resolution. Both methods stand out as key tools in legal practice, helping to resolve conflicts and strengthen business relationships. Keywords: law on arbitration, alternative dispute resolution, arbitration, arbitration agreement, arbitral tribunal, international arbitration, arbitration organizations, arbitration award, mediation

International commercial arbitration in Ukraine under martial law

It is indicated that International Commercial Arbitration is one of the most effective ways of resolving disputes between participants in international trade, ensuring speed, flexibility and neutrality of the process. However, the activity of arbitration in Ukraine faces a number of new challenges due to the introduction of martial law as a result of large-scale aggression. The hostilities led to significant disruptions to normal economic activity, including making it difficult to enforce contracts, access to justice, and enforce arbitral awards. This raises questions about the ability of arbitration to function effectively in such extraordinary circumstances. The topic is extremely relevant in today’s environment, where Ukraine faces large-scale military aggression that significantly affects all spheres of economic life, including international trade and legal relations between business entities. The article examines the legal and practical aspects of international commercial arbitration during martial law, particularly the impact of military operations on arbitration procedures, the possibility of enforcing arbitral awards, and the problems of their enforcement in a limited legal and economic environment. The main focus is on how arbitration institutions in Ukraine, in particular the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry, are adapting to the new realities. The author also considers the issue of enforceability of arbitral awards in the light of military operations, sanctions, economic restrictions, and challenges for the Ukrainian legal system. The challenges related to the organization of the arbitration process, such as logistical difficulties, limited access to resources and documents, as well as the application of sanctions against the parties to the dispute, are explored. Special emphasis is placed on the possibilities of conducting arbitration hearings in a remote format and the use of modern technologies to ensure the continuity of the process under martial law. The article also examines the prospects for adapting arbitration to the new realities, including the possibility of filing claims for compensation for damages caused by military operations. The study analyses the prospects for the development of international arbitration in Ukraine, including the use of digital technologies, online hearings, and adaptation of the arbitration process to the challenges of wartime. Particular attention is paid to the opportunities for Ukrainian entrepreneurs to protect their rights through arbitration in international disputes, including the issue of compensation for damages caused by military actions.

The Effectiveness Of The Implementation Of The Principle Of Confidentiality In The Enforcement Of Arbitral Awards In Indonesia

Litigants through ordinary courts (national of a country) have been generally considered ineffective for entrepreneurs. Therefore, the settlement of cases outside the court on the basis of peace is allowed by law in this case the law on judicial power. This is intended to facilitate the settlement of business disputes arbitration institutions have several advantages over the general judiciary. These advantages include guaranteed confidentiality of the parties ' disputes from the public. Delays caused in procedural and administrative matters can be avoided. The parties may select arbitrators who, in their belief, have knowledge and experience in resolving business disputes. However, there is a conflict between the principle of confidentiality in arbitration proceedings with the obligation to register an arbitration award to the court to obtain an executive warrant, where the court will provide case numbering and the hearing schedule will be uploaded to The Case Tracking Information System (SIPP). Initially, the public did not know that there was an arbitration hearing between Company A and Company B, but because of the system of registering decisions in court to obtain a writ of enforcement, the public became aware that there was an arbitration decision on a dispute between Company A and Company B, so that the effectiveness of the confidentiality principle did not work effectively and a Judicial Review of Article 59 of the arbitration law and APS was necessary for the implementation of the principle of confidentiality perfectly on the enforcement of arbitration decisions in Indonesia.

Setting-Aside Proceedings Against Treaty- Based Arbitral Awards in Switzerland and Their Contribution to the Debate Regarding the Fundamental Requirements for Protection under Investment Treaties

The Swiss Federal Supreme Court has rendered over twenty-five decisions in setting-aside proceedings brought against treaty-based arbitral awards to date. Against the backdrop of conflicting decisions by arbitral tribunals on many issues that regularly arise in investment arbitrations, the emergence of a consistent body of jurisprudence by the Court may be of interest even outside of Switzerland. The present contribution provides an overview of the procedure for setting aside arbitral awards before the Court and assesses the relevance of the various grounds for setting-aside that can be invoked specifically with regard to treaty-based arbitral awards. It addresses the Court’s most interesting findings in relation to the fundamental requirements for obtaining protection under investment treaties and shows that the Court will likely further contribute to the debate on jurisdictional issues in treaty-based arbitrations.

The International Arbitration Award as a Simple Proof Requirement in Bankruptcy

The International Arbitration Award as a Simple Proof Requirement in Bankruptcy

„Brexito“ įtaka arbitražui: anti suit injunction ir investicinio arbitražo aspektai

Concentrating on a few material aspects in relation to the broader theme, the article analyses the effect of Brexit on international commercial arbitration. In particular, the piece firstly treats on the most recent UK Case Law in relation to anti-suit injunction – a phenomenon attributable to the Common Law in the context of the earlier European Union courts’ jurisprudence of the said instrument. Secondly, Brexit’s interplay with the ongoing global investment arbitration reform is considered. The article considers the globally recognised UN 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, on which Brexit had no adverse effect. When analysing the interplay between Brexit and the ongoing global investment arbitration reform, a particular regard is paid to the lack of investment arbitration provisions in the UK-EU Trade and Cooperation Agreement, as well as the termination of various relevant bilateral investment treaties. The article concludes that the influence of arbitration shall continue to grow, anti-suit injunction shall continue to be applied by the United Kingdom courts, and the Brexit’s interplay with the global investment protection overall and the investment arbitration in a particular reform is somewhat consistent.

Актуальные тенденции в законодательстве Китая о международном арбитраже

China did not adopt the UNCITRAL Model law in either version and its arbitration legislation often does not reflect the world-recognised practices of international arbitration. However, during the last few years, China has been softening its approach towards both international commercial and investment arbitration. The recent court decisions, adoption of the new Civil Procedure Law and proposal of the Draft Amended Arbitration Law signify gradual recognition of the concept of ‘seat of arbitration’ instead of relying on the domicile of the arbitration institution. Furthermore, Chinese courts have acknowledged the capacity of foreign arbitration institutions to administer disputes within mainland China — a significant shift from past practices where only Chinese arbitration commissions could administer arbitration proceedings in China under the Arbitration Law. This change is also reflected in the Draft Amended Arbitration Law. Another crucial legislative change is adoption of the Foreign State Immunity Law, which came into effect in January 2024. By enacting this law, China has shifted from absolute to restrictive immunity in disputes between a person or entity and a state. Thereby China allowed claims against foreign states arising out of commercial activities or international investment treaties to be considered in Chinese courts. Nevertheless, challenges remain in regards of recognition and enforcement of investment arbitral awards or conducting of investment arbitration in China. First, China’s reservation under the New York Convention 1958 limits recognition and enforcement of foreign awards to ‘commercial’ disputes, excluding investor-state disputes. Besides, it is discussed that China has not taken proper steps to recognise the ICSID awards as national ones for purposes of enforcement, even though it ratified the ICISD Convention. Furthermore, formally under the current Arbitration Law the investment arbitration is not possible. Finally, considering the latest legislative amendments, recent court practice and updated arbitration rules of Chinese arbitration institutions, it can be concluded that China has taken the pro-arbitration approach.

Юридическая хроника

In the September Chronicle, read comments on the criminal case of Pavel Durov in France, on the laws on amnesty for business crushing, on mining, on the introduction in the Criminal Procedure Code of an online form of meetings between a advocate and a prisoner, on changes in the foreclosure of a bankrupt’s only home, and on new approaches of the Supreme Court to the recognition and enforcement of international commercial arbitration awards.

Pembatalan Putusan Badan Arbitrase Nasional Indonesia Berdasarkan Pasal 70 Undang-Undang Nomor 30 Tahun 1999 tentang Arbitrase dan Alternatif Penyelesaian Sengketa Ditinjau dari Sifat Final dan Mengikat: Studi Kasus Putusan Nomor: 104 B/Pdt.Sus-Arbt/2019

The application of the provisions of Article 70 of Law Number 30 of 1999 has resulted in inconsistent interpretations and no firm rules. On the other hand, BANI's decision is final and binding. However, it is not uncommon for parties who are dissatisfied with the arbitration award to file a lawsuit to annul the BANI decision to the district court. This legal research is classified as normative juridical research which aims to examine legal certainty based on literature studies (documents or library research), case approaches, and applicable positive law. The results of this thesis research show that the cancellation of BANI's decision through Decision Number: 104 B/Pdt.Sus-Arbt/2019 was based on allegations that it contained elements contained in Article 70 of Law Number 30 of 1999, namely that after BANI's decision was taken, documents were found that decisive, which was deliberately hidden by Shimizu Corporation and PT. Hutama Karya. Thus, the annulment of the BANI decision Number 854/V/ARBBANI/2016, clearly and clearly includes the reasons for the cancellation of the arbitration award and the judge's considerations regarding the annulment of the BANI Decision through Decision Number: 104 B/Pdt.Sus-Arbt/2019, of the opinion that the claim proposed by Shimizu Corporation and PT. Hutama Karya to BANI, it was proven that there were several documents that were not submitted by Shimizu Corporation and PT. Hutama Karya, however, if the document is submitted, BANI's decision will be different or at least it will not grant the demands of Shimizu Corporation and PT. Hutama Karya in whole or in part, in this case, includes claims regarding fluctuations in the rupiah exchange rate.

Disharmonisasi Pasal 70 Undang-Undang Nomor 30 Tahun 1999 dengan Putusan Mahkamah Agung: Studi Putusan Mahkamah Agung Nomor 264 B/Pdt.Sus-Arbt/2014

In business activities, one of the most suitable alternative dispute resolution methods is arbitration. This research is conducted to understand and examine the principles of finality and binding nature as outlined in Article 70 of Law No. 30 of 1999 concerning Arbitration and Alternative Dispute Resolution. Conceptually, arbitration relies on an arbitration agreement agreed upon by the disputing parties, and the District Court is not authorized to adjudicate the dispute. On the other hand, Law No. 30 of 1999 itself provides an opportunity for filing a cancellation appeal in court. To address this issue, the case study used is the Supreme Court Decision No. 264 B/Pdt.Sus-Arbt/2014. In this research, it was found that the non-absolute nature of the principle of finality and binding nature in arbitration is influenced by the need for executory power, which is the jurisdiction of the court, and the binding finality, although the opportunity is limited to reasons of null and void in the arbitration procedure. Although this principle is not absolute, the law does not automatically facilitate the cancellation requests filed. The non-absolute nature of the arbitration award principle in Law No. 30 of 1999 creates ambiguity regarding the principle of finality and binding nature, as in practice, parties who lose or feel that their interests are not accommodated seek ways to challenge the arbitration award, even with reasons beyond the provisions of Article 70 of Law No. 30 of 1999.

Hague choice of court convention: current state of affairs and application issues

The article provides a scientific and practical analysis of international legal aspects relating to the issue of determining the exclusive jurisdiction of a dispute by means of a choice of court agreement, which is quite relevant, since the ratification of the relevant Convention, which was signed in 2014, took place during the martial law regime, which complicates the process of implementing the provisions of the Convention in the Ukrainian legal system. The author analyses the current Ukrainian legislation in the area of determining the jurisdiction of private law relations with a foreign element, in particular, proceedings in cases related to the jurisdiction determination procedure, and international documents in the area of choice of court agreements, such as the Laws of Ukraine «On International Private Law», «On Amendments to Certain Legislative Acts of Ukraine in connection with the Ratification of the Convention on Choice of Court Agreements», the Hague Convention on Choice of Court Agreements and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The author identifies certain problems of enforcement of the choice of court agreement in the judicial system of Ukraine and issues of procedural protection of the parties to the agreement. It is noted that currently there is no definition of an exclusive choice of court agreement in national legislation and there are problems in the enforcement of a Ukrainian court decision by other states where no agreement on legal assistance has been concluded. The difficulty of applying the Convention on Choice of Court Agreements in comparison with the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards has been proven, which may lead to differences in the practice of use among the countries that are parties to the Convention. The author identifies the need to expand Article 4-1 of the Law of Ukraine «On Private International Law» and improve the implementation of disputes involving an exclusive choice of court agreement. The author emphasises the need to resolve problematic issues, as this will positively affect the international legal image of the state and prepare further legislative changes for more effective synthesis of the legal systems of Ukraine and the EU member states.

E-ARBITRAL IN MALAYSIA: ISSUES, CHALLENGES, AND OPPORTUNITIES

The shift from traditional arbitration to electronic arbitration (hereinafter referred to as “e-arbitration”) has been driven by severalfactors, including the increasing availability of technology and the need for more efficient and cost-effective dispute resolution in aglobalised world. E-arbitration has been well-received because of its remarkable advantages, including increased efficiency, reduced costs, and improved accessibility, making it an attractive alternative to traditional arbitration. However, to date, the adoption of e-arbitration has not been as expected and the legal position surrounding the legitimacy of the electronic arbitral award (hereinafter referred to as “e-arbitral award”) in Malaysia has yet to be established. This requires a careful examination of existing laws and regulations, as well as a careful consideration of potential challenges and opportunities. This article has been grounded in doctrinal legal research where primary and secondary sources were collected through a library-based approach and later examined using critical and analytical approaches. The use of e-arbitration in Malaysia is expected to encounter several legal challenges since it is not yet fully regulated. However, the present study has found that Malaysian national laws, including the current arbitration laws, are relevant, sufficient, and relatively developed to legalise e-arbitral award. It has also discovered several legal loopholes that must be adequately and directly considered by Malaysian lawmakers. This will enhance the sustainable establishment of e-arbitration in Malaysia and ensure the protection of the interests and rights of all parties involved. Finally, this study has proposed two models for predicting e-arbitral award by human-arbitrators and for enforcing e-arbitral award under the auspices of the AIAC.

EU attacks on investor rights

Abstract The European Commission, with the cooperation of the Court of Justice of the European Union (CJEU), continues a crusade against investors’ rights. This is done by reducing the rights of access by investors to an independent arbitral tribunal to resolve disputes and by making arbitral awards impossible to enforce. The CJEU judgments which are discussed in this article are arbitrary, lack logical argument, and ignore international law (in particular, the 1969 Vienna Convention on the Law of Treaties). Recent judgments by states that are not EU Member States have restored the validity of arbitral awards that were annulled by EU courts. The judgments show that they do not believe in the CJEU judgments, which have led to the cancellation of inter-EU Bilateral Investment Treaties and the annulment of Energy Charter Treaty awards.

The Juridical Canvas of Recognizing and Enforcing Arbitral Awards: A Deconstruction of Legal Frameworks and Contemporary Practices in Nepal

The Juridical Canvas of Recognizing and Enforcing Arbitral Awards: A Deconstruction of Legal Frameworks and Contemporary Practices in Nepal

The temptation of Occam’s Razor: jurisdiction, admissibility and party autonomy

Abstract Since the implementation of the UNCITRAL Model Law on International Commercial Arbitration in 1985, its jurisprudence has been developed in a broad array of aspects amongst which is the distinction between jurisdiction and admissibility. It has been said that the distinction is a useful tool in adjudicating the issue of whether an arbitral award should be set aside by a domestic court—but is it necessarily so? In C v D (2023) 26 HKCFAR 216, the Hong Kong Court of Final Appeal had the opportunity to revisit the usefulness of the distinction. Given that the Court was divided on the issue, C v D not only provides two lines of thought for the international arbitration community to reflect on the distinction between jurisdiction and admissibility but also provides a reference for Model Law jurisdictions in deciding future cases.

Filing an Arbitration Award: An Analytical Comparative Study

Filing an Arbitration Award: An Analytical Comparative Study

How to assess the res judicata effects of international arbitral awards: giving concreteness to an autonomous approach

Abstract The article seeks to demonstrate the inadequacy of the ‘conflict-of-laws’ approach to determine the res judicata effects of international arbitral awards. Demystifying the erroneous assumption that the rules on the scope of res judicata are per se a matter of public policy, the authors defend an ‘autonomous’ approach, which dispenses with domestic law and confers broad preclusive effects on awards, with a view to avoiding the re-litigation of a dispute that is, in essence, the same as one already decided by a prior award. The legal bases for such an approach are party autonomy and the inherent powers of arbitrators. Building on the ILA Recommendations and recording the evolution of the conception of res judicata in certain civil law jurisdictions, the article proposes the elements of an arbitration-specific notion of the subject matter scope of the res judicata of awards with respect to issues of substantive law, addressing the situation of the res judicata of an award relied upon in further arbitral proceedings. The authors urge soft-law-making bodies and arbitral institutions to tackle arbitral res judicata proactively and contribute to the development of rules to give secure guidance to arbitrators and courts in determining its proper contours.

Enforcing intra-EU ICSID arbitration awards in a post-Achmea world in Europe: could the European Court of Human Rights assist in resolving the deadlock?

Abstract When, at the enforcement stage, a European Union (‘EU’) Member State’s national court refuses to recognize and/or enforce a final intra-EU arbitration award rendered as per the ICSID Convention on the basis of the Court of Justice of the EU (‘CJEU’)’s decision in Slowakische Republik v Achmea BV, the right to the peaceful enjoyment of possessions, guaranteed by article 1 of Protocol No. 1 (‘A1P1’) of the European Convention on Human Rights (the ‘ECHR’), may be infringed. This article explores that issue. First, and by way of context, it explains the development of the so-called ‘intra-EU objection’ in the context of investor–State arbitration, culminating in the CJEU’s seminal ruling in Achmea and its progenies. Second, it provides an overview of various efforts to enforce intra-EU awards post-Achmea, focusing on ICSID Convention awards that have cleared any post-award remedies under the Convention, and how national courts have approached this. Third, it details how A1P1 of the ECHR might apply to the non-enforcement of intra-EU ICSID awards—engaging in a detailed analysis of the tests that would be applied by the European Court of Human Rights in such an instance. Finally, it discusses the potential remedy before the Court and the consequences for a finding of violation. While this article is focused on final and enforceable ICSID Convention awards, the analysis may be relevant to other intra-EU enforcement scenarios, subject to the specific factual circumstances in those scenarios.

Benefits of North Korea's Membership in the New York and ICSID Conventions

This article contends that North Korea should accede to the New York Convention and the ICSID Convention to provide more robust legal protections and dispute settlement mechanisms for foreign investors. While North Korea has enacted various domestic laws and established special economic zones to attract foreign investment, these measures have proved insufficient to fully assuage investor concerns, particularly regarding the enforcement of arbitral awards and protections against expropriation. Joining the New York Convention would mitigate uncertainties surrounding the enforcement of foreign arbitral awards by obligating North Korean courts to recognize and enforce such awards, subject only to limited, internationally accepted grounds for refusal. Accession to the ICSID Convention would enable aggrieved foreign investors to bring claims against North Korea before a neutral, depoliticized arbitral tribunal, providing an additional layer of protection against discriminatory or expropriatory state conduct. Membership in these conventions would significantly enhance North Korea's credibility in the eyes of foreign investors, demonstrating a commitment to upholding the rule of law and aligning its investment framework with global norms. While accession alone is not a panacea, it represents a crucial step toward building investor confidence, facilitating greater FDI inflows, and fostering North Korea's economic development and international engagement.