Arbitral Awards Research Articles

Implementation of International Arbitration Awards in Indonesia : Is it Final and Binding?

International Arbitration is one of the popular dispute resolutions used by disputing parties because it has several advantages such as confidentiality, fast decision-making and in principle is final and binding. However, in Indonesia, there are still other efforts that must be carried out before the award is executed or implemented so that international arbitration awards in Indonesia are not directly executed or implemented. Therefore, the objectives of this study are: 1), to know and analyse how the implementation of international arbitration awards in Indonesia; 2) to examine how the nature of international arbitration awards in Indonesia. This research was conducted using normative juridical research methods. The results of this study are First, the Implementation of International Arbitration Awards in Indonesia can be recognised and implemented if they are registered with the Registrar of the Central Jakarta District Court, and have fulfilled the requirements in Article 66 of Law No. 30 of 1999 concerning Arbitration and Alternative Dispute Resolution. Second, International Arbitration Awards in Indonesia are final because there is no appeal at the High Court level in any province in Indonesia, and cassation or review to the Supreme Court. International Arbitration Awards are binding or enforceable/executable as long as they do not conflict with the provisions of Indonesian national laws and regulations and fulfil the provisions and stages stipulated in Law No. 30 of 1999 concerning Arbitration and Alternative Dispute Resolution, hence international arbitration awards.

Application of the Principle of Legal Certainty in the Execution of an Arbitral Award in Indonesia

In principle, the legal system regulates the life of a community so that conflicts do not occur, although often these conflicts cannot be avoided, a principle of legal certainty is needed in resolving disputes through arbitration and how the execution of an arbitral award in Indonesia can be applied or implemented. The legal system has an important role to play in resolving these conflicts. The legal system in the judicial world has a major influence in the application of law, especially for judges in examining and deciding a case. Judges in deciding a case will definitely pay great attention to the legal system in their jurisdiction. In addition, the Panel of Judges uses the decisions of other judges who decide cases whose substance in principle has similarities to be used as a reference and consideration in deciding a case.

Alternative Dispute Settlement in International Law: Resolving Commercial Disputes through Arbitration

The increasing volume of international trade, coupled with the computer-nature of many of these relationships, has led to greater reliance on arbitration to resolve contractual disputes. This settlement of disputes by a non-judicial third party is increasingly called for, in international. Contracts because it is cheaper, quicker, and more private than resolving disputes through litigation. Equally important, however, is the fact that it can take place in a neutral location. The increase trade with countries such as China, Japan and Korea where mediation rather than litigation of disputes is traditional, has given added impetus to this trend. The growing attractiveness has resulted in the establishment of arbitration centers in world capitals such as London, Cairo, Hong Kong and Stockholm and major cities as Geneva and New York. Recognition and enforcement of international arbitration agreements and awards is generally controlled through multilateral treaties. An outgrowth of this trend has been the emergence of several major arbitral institutions that have conducted their own sets of rules and procedures. However, the parties to a contract are free to opt for a more informal or ad hoc arbitration arrangement based on their own set of guidelines. Such agreements are legally enforceable as long as the parties have agreed to abide by the arbitrator’s decision. In Cameroon however, since the passage of the OHADA Treaty was signed and ratified in 2000, it is applicable in the territory of Cameroon. This is the first treaty of its kind in Africa to deal with arbitration matters sometimes referred to as well.

THE NATIONALITY OF THE ARBITRAL SENTENCE IN INTERNATIONAL ARBITRATION

In the case of international disputes resolved by means of arbitration, the cross-border effects of the awards are essential for the parties. At first glance, these awards are assimilated to the national court judgements of the state where they were pronounced and are considered foreign court judgements in any other state. Nevertheless, in some cases, the links between the arbitral procedures and the place of pronouncement of the awards are weak or even non-existent, which raises serios doubts over the ability of this specific place to determine the nationality of the arbitral award. The described circumstance is the premise of the present scientific approach, which aims to deepen the analysis of the criteria for determining the nationality of an arbitral award (by a Romanian court), with implications on its cross-border effects, as well as on the procedures that could lead to its dissolution. From a methodological point of view, the research aims, successively, to inventory the applicable legal instruments, to delineate the solutions offered by them, in order to, finally, by overlapping them, provide a comprehensive theory on the determination of the nationality of an arbitral award.

Legal Certainty for the Execution of Arbitration Decisions on Marriage Agreement Disputes for Foreign Citizens In Indonesia

With this type of normative juridical research and using a statutory approach and a case approach by studying and analyzing all legal aspects, this research examines the legal certainty of the execution of Alaska state arbitration decisions regarding marriage agreements between foreign citizens who have assets in Indonesia. Arbitration is an alternative dispute resolution that is in great demand by many parties. However, in Indonesia itself the execution of international arbitration awards only revolves around trade disputes. On this basis, the international arbitration award regarding the marriage agreement dispute cannot be executed in Indonesia. Indonesia needs to make improvements to expand its authority so that international disputes do not only revolve around trade disputes, but also family disputes with the possibility of mixed marriages which then give rise to disputes such as property or custody as a result of mixed marriage divorce.

Re-calibration of Curial Intervention in Public Policy Challenges Against Arbitral Awards

Re-calibration of Curial Intervention in Public Policy Challenges Against Arbitral Awards

The UNIDROIT Principles of International Commercial Contracts as a System of Transnational Contract Law: Two Recent Arbitral Awards

The UNIDROIT Principles of International Commercial Contracts as a System of Transnational Contract Law: Two Recent Arbitral Awards

Annulment of The Arbitration Decision Accordin to The Legislation and Practice

Objective: The study of the work has a comprehensive approach, based on current legislation and practice. Based on the fact that the arbitration procedure is an alternative procedure for the resolution of disputes, it is quite demanded, and that there are deficiencies in the literature as well as in the knowledge of the subjects of the law. Thus, when it came to the decisions made in the arbitration procedure, we say that they have the same legal force as the decisions made by the regular courts of the state, and also the annulment of the decision requires special clarification, since there are cases that the decision made in the arbitration proceedings are required to be set aside as the reason that the agreement to arbitrate is void. Thus, the purpose of this paper is to clarify in short points that it is possible to annul an arbitration decision in the event that the arbitration agreement was invalid. Method: The work is formulated on the basis of appropriate scientific methods. The methods that are included in the paper are scientific methods, historical methods, comparative methods, deduction methods, induction methods, and other methods without which the paper could not be formulated! Result: The decision made in the arbitration procedure must be made in accordance with the law on arbitration as well as with the principles defined in the law on arbitration, whether domestic or international. If it is found that the arbitration decision is illegal, or not based on evidence, then the same can be annulled. This annulment can be done by the regular state courts, but always in case the party that has a legal interest addresses the court and requests the annulment of the arbitration decision because it is contrary to the law on arbitration or contrary to the agreement on arbitration. or other reasons which the parties may present in the action for annulment of the arbitration award. We will talk more about the annulment of the arbitration decision in the content of this paper. Conclusion: As a conclusion of the paper, in the general sense of this paper, I have mentioned that the parties during the terms of the agreement must be careful not to conflict with any reason that leads to the invalidity of the arbitration agreement, since this invalidity will have consequences in in the event that an arbitration award has been given by this agreement, as from the regular courts this award will be annulled because the arbitration agreement has been invalid since the beginning of the criminal offense of this agreement or may become invalid and with the passage of time. So, during any action taken by the parties who claim to resolve their dispute through arbitration, they should be careful that everything is in order with the arbitration agreement, as the invalidity of the agreement may lead to the annulment of the award. of arbitration and this would be to the detriment of the party.

Correlation between the Arbitrators’ Discretion and the Natural Justice in Arbitration Proceedings

INTRODUCTION. This article discusses the ap­proaches developed by the courts of the Asia-Pacific region (on the example of Singapore, Hong Kong and Malaysia) on the relationship between the arbitrators’ discretion when considering disputes and the obser­vance of the principle of natural justice.The purpose of the article was to analyze the ap­proaches of national courts to the interpretation of the principle of natural justice in the context of the imple­mentation by arbitration of its discretionary powers in resolving disputes submitted to them. The risk that the arbitrators fail to find a balance between discretionary powers and natural justice is that the award may be set aside.MATERIALS AND METHODS. The study was based on the analysis of national legislation of the countries of the Asia-Pacific region, the practice of ar­bitration centers and judicial bodies, as well as the ex­isting positions of researchers specialized in the natu­ral justice issues and practitioners in the field of international commercial arbitration. The methodo­logical basis of the research includes general scientific (analysis) and special legal (comparative legal) methods.RESEARCH RESULTS. International commercial arbitration is widely regarded as an alternative dis­pute resolution mechanism to litigation in national courts. However, national courts are often involved in reviewing arbitral awards in the context of their set­ting aside in order to ensure that the arbitral proce­dure complies with the fundamental principles of nat­ural justice. The understanding of the principle of natural justice is not the same in all jurisdictions and depends on the venue of the arbitration, as well as on what rules the parties have agreed to govern the pro­ceedings. Arbitral discretion is important in filling the gaps left by the rules and guidelines formulated by various arbitral institutions and practices.DISCUSSION AND CONCLUSIONS. The author considers the approaches of the courts of Singapore, Hong Kong and Malaysia ensuring a balance between arbitrators ‘discretion and compliance with the princi­ple of natural justice, and also, based on the analyzed practice, suggests ways to minimize the risk of annul­ment of an arbitral award due to a violation of natural justice, namely the need for an established procedural protocol, which would provide certainty and eliminate problems arising in connection with the application of discretion by arbitration.

Consensual settlement of competition disputes in China: a call for conditional arbitrability

ABSTRACT The current reform of China’s Arbitration Law is aimed at making the country a more attractive seat for international commercial arbitration and at encouraging consensual dispute settlement to supplement the heavy workload of the courts. At the same time, due to the lack of certainty as to the arbitrability of antitrust disputes, the competition-related arguments may effectively stall or delay arbitration proceedings or create the risks of setting aside of arbitral awards on public policy grounds. The paper addresses the aforementioned problem by advancing a call for conditional arbitrability of antitrust disputes in China, which will require clarification of the applicable legal standards and detailed procedural guidance by the Supreme People’s Court that would instruct the arbitrators and the parties about applying competition rules in the context of contractual disputes. This policy proposal is grounded on the analysis of the divergent judicial approaches to arbitrability of competition-related issues developed by the Chinese judiciary.

The Nationality of the Online Arbitration Award under the Kuwaiti Law

The Nationality of the Online Arbitration Award under the Kuwaiti Law

Appraisal of Challenges Confronting Recognition and Enforcement of Arbitral Awards in Nigeria

Arbitration is an alternative dispute resolution method often commenced by express agreement of parties in a dispute. Arbitration has become an increasingly preferred method of settling commercial disputes and thought to have advantages over the traditional litigation. However, a problem could emerge where one party to the arbitration is unwilling to comply with the terms of the award. In this case a successful party is left with no option than to use the enforcement machinery of the courts. This paper adopts the doctrinal approach in discussing the issues with the procedure provided for in the various rules of courts for recognition and enforcement of arbitral awards. It also identifies the challenges inherent in the recognition and enforcement of arbitral awards. The paper identifies other enforcement machineries outside the courts and concludes that arbitration, if not properly managed may ultimately cause delay in enforcement and become a time wasting method therefore defeating the very essence of opting for arbitration instead of litigation. Keywords: Challenges, Recognition, Enforcement, Arbitral Award

An Analysis of Judicial Intervention and Assistance for Arbitral Proceedings: A Look at the Courts of Ghana

Without the support of national courts, arbitral tribunals are unable to function properly, particularly in situations involving the enforcement of arbitration agreements, procedural orders, and arbitral awards, among other things. The arbitral tribunal cannot compel a party to carry out a task, or obligation, or fulfil an obligation. The court has the authority to order a party to carry out an order and can also impose harsh consequences for contempt of court, such as fines, imprisonment, or other punishments. Unless the issue(s) before the court are non-arbitrable pursuant to section 1 of the Alternative Disputes Resolution Act, 2010. The courts of Ghana have the capacity and jurisdiction to enforce applications by a party for arbitration. The New York Convention, which also grants national courts of contracting states authority to hear cases involving the enforcement of arbitration agreements, has been ratified and domesticated by Act 798 under the First Schedule. The paper argues that even though national courts are permitted by statutory laws and international conventions to assist in arbitral proceedings, courts must exercise some restraint and must not be in a hurry to inherit jurisdiction and interfere with disputes before arbitration, since arbitration proceedings are considered alternative methods of resolution of disputes to litigation, and unless expressly provided for and in obvious instances devoid of any controversy. A purported judicial assistance should not be used to whittle away the function of arbitral tribunals and render nugatory the benefits that are to be derived from these proceedings as it would defeat the concept of Alternative Dispute Resolution (ADR). The paper concludes by suggesting that unnecessary interventions by some national courts including Ghana appear to be interfering with party autonomy as well as the competence of the arbitral tribunal, hence, hindering the purpose for which the Alternative Dispute Resolution Act 2010 was enacted and other supporting legislations and conventions as an alternative to litigation which is non-voluntary, expensive, acrimonious and complicated.

Enforcing Emergency Arbitral Awards: Global and Indian Perspectives

Enforcing Emergency Arbitral Awards: Global and Indian Perspectives

Research on the Revocation of Foreign-Related Arbitration Awards in Shanghai City

Research on the Revocation of Foreign-Related Arbitration Awards in Shanghai City

Commercial arbitration regime and sourcing decision

Introducing commercial arbitration into a two-country sourcing model, this paper examines how the quality of commercial arbitration regime affects sourcing decision when production involves a relationship-specific transaction. Arbitration may be invoked when a firm shaves the investment value of a customized intermediate input or does not pay in full for investment. Under the full verifiability of an ex-post investment value by an arbitrator, firm behavior is governed by the quality of arbitration regime, measuring how fully a national arbitration regime supports the enforcement of arbitral awards. I theoretically find that a firm’s likelihood of choosing global sourcing over domestic sourcing increases with the source and destination countries’ qualities of international arbitration regimes and the source country’s quality of general arbitration regime. These impacts are magnified as the production of an intermediate input involves a greater degree of relationship-specific transaction. Results also show that as the production of an intermediate input entails a greater degree of relationship-specific transaction, a firm’s likelihood of choosing global sourcing over domestic sourcing decreases when domestic arbitration offers the better enforcement of arbitral awards compared to international arbitration.

Justice in the balance: The crucial role of disclosure in ensuring justice in Jordanian arbitration

AbstractAs an alternative to traditional court litigation, arbitration has gained prominence in Jordan's legal landscape for its distinct attributes like speediness, confidentiality, autonomy, and efficiency. Central to the sanctity of this mechanism is the arbitrator's duty of disclosure, ensuring that the arbitration process remains impartial, transparent, and devoid of any potential bias. This paper explores the profound significance of the duty of disclosure in Jordan by analyzing the latest Jordanian Court of Cassation Decision No. 1479 of 2023, where nondisclosure by the Arbitral Tribunal led to the annulment of the arbitral award. Through juxtaposing international arbitration norms and thoroughly examining Jordanian legislation, this study underscores the consequences of nondisclosure and the paramount importance of transparency in arbitration. The insights drawn from this case reaffirm that the foundation of arbitration's credibility and trustworthiness rests on the rigorous adherence of arbitrators to disclosure, ensuring that justice is not only served but is transparently perceived.

Reviewing Arbitration Award in View of Competition Law

Reviewing Arbitration Award in View of Competition Law

The Need, Development, and Benefits of Commercial Arbitration in Afghanistan

Aim: Commercial arbitration is considered to be one of the best and widely accepted mechanisms for resolving commercial disputes in the world today. However, on the one hand, as a member state of the international community, with regard to foreign investment and commercial development in Afghanistan, to what extent does Afghanistan need commercial arbitration in its jurisdiction? How much attention has been paid to the and finally, what are the benefits and advantages of this dispute resolution mechanism for the opposing sides of commercial disputes? All of these queries have been analytically discussed in this research. In this study, the efforts made in Afghanistan are evaluated. The basic purpose of the subject is to evaluate the need and development of commercial arbitration in Afghanistan and to reveal its benefits to foreign and domestic businessmen and companies so that businessmen and companies in Afghanistan can resolve their commercial disputes through a cheap, easy and efficient arbitration mechanism which ultimately paves the way for encouraging greater foreign investment and trade in Afghanistan.
 Methods: In this research, the bibliographic approach has been used and the strategy of presenting the research information is descriptive and analytical.
 Results: The findings of the research show that Afghanistan accepted commercial arbitration as a mechanism for resolving commercial disputes in its jurisdiction almost decades ago, and today it has created many laws for its more efficiency. In addition, it has also practically created arbitration centers and institutions for the resolution of commercial disputes and even created some educational programs for the training of professional arbitrators and expert in this field.
 Recommendation: To a noticeable extent, Afghanistan has paid significant attention to the development of arbitration, it still needs to establish countrywide arbitration centers, enact new procedural laws to enforce arbitral awards and ultimately it needs to institutionalize the use of arbitration mechanism in its legal system.

Del ámbito nacional al internacional: la evolución de la jurisprudencia constitucional colombiana en materia de tutelas contra laudos arbitrales

This article proposes a review of the Colombian Constitutional Court jurisprudence regarding theadmissibility of the “tutela action” against arbitral awards. Firstly, it reviews the jurisprudence thatdeveloped the doctrine of the “vía de hecho” and the tutela against judicial sentences. Secondly,it analyzes the extension of the doctrine of tutela against sentences to domestic awards. Finally, itexamines the SU-500/15 and T-354/19 judgments that set a precedent in the Colombian constitutionaljurisprudence by allowing the admissibility of the tutela action against international awards seated in Colombia, which generates the need to establish different rules when it comes to national and international awards and the implications in terms of subsidiarity in relation to the action to set aside arbitral awards.