Arbitral Awards Research Articles

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.

Juridical Review of the Implementation of Foreign Arbitration Awards in Indonesia in the Perspective of Constitutional Court Ruling Number 4/PUU-XXII/2024

The implementation of foreign arbitration awards in Indonesia from the perspective of Constitutional Court Decision Number 4/PUU-XXII/2024 is crucial in both international and domestic legal contexts. This article provides a strong legal basis for arbitration usage in resolving cross-border business disputes in Indonesia, both domestically and internationally. The research contributes to the legal field by offering an in-depth normative juridical analysis of how unfamiliar discretion grants are executed in Indonesia. Data analysis was carried out descriptively and qualitatively. The research topic, namely, the Juridical Review of the Implementation of Foreign Arbitration Decisions in Indonesia in the Perspective of Sacred Court Choice Number 4 is analyzed using deductive methods, which entail deriving conclusions from general to specific, particularly regarding the research topic. In this specific situation, a juridical survey of the execution of unfamiliar mediation grants in Indonesia becomes vital to comprehend the effect of established Court Choice number 4 on international arbitration practices, legal certainty, and the investment environment in Indonesia.

COMPARISON OF COMMERCIAL DISPUTE RESOLUTION MECHANISMS IN JORDAN AND THE MIDDLE EAST

This article provides a comprehensive comparison of commercial dispute resolution mechanisms across Jordan, Saudi Arabia, the United Arab Emirates (UAE), and Egypt. With the increasing globalization of business and the growth of foreign investments in the Middle East, an effective and efficient legal framework for dispute resolution is critical. The primary goal of this study is to provide a comprehensive comparative analysis of commercial dispute resolution mechanisms in Jordan and key Middle Eastern countries, with the aim of understanding their impact on the business climate and investor confidence in the region. The research employs a comparative analysis approach, drawing on a variety of sources including legal texts, case studies, and interviews with legal experts and business professionals from Jordan, Saudi Arabia, UAE, and Egypt. This comparative analysis examines the similarities and differences in the dispute resolution frameworks of these four countries, focusing on judicial processes, arbitration practices, and the adoption of alternative dispute resolution (ADR) methods. All four nations share a common legal heritage influenced by Islamic Sharia law and have adopted international standards such as the UNCITRAL Model Law to modernize their arbitration systems. Each country has established specialized commercial courts to expedite the resolution of business disputes and is a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, facilitating cross-border enforcement of decisions. However, there are distinct differences shaped by local legal and economic policies. For instance, the UAE features a dual judicial system that includes Sharia-influenced local courts and common law-based courts in its free zones, which are absent in the other three countries. The study highlights the strengths and weaknesses of each jurisdiction's dispute resolution mechanism and discusses ongoing reforms aimed at enhancing the effectiveness and efficiency of legal processes. This analysis not only aids in understanding each country's approach to dispute resolution but also serves as a guide for international businesses and investors considering operations in these regions.

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.

Implementation of International Arbitration Awards in Indonesia from the Perspective of Legal Value Theory

Establishing an arbitral institution aims to resolve business disputes swiftly and conclusively, with arbitration's finality and binding nature being key principles. However, Indonesian arbitration law requires exequatur from the Central Jakarta District Court to enforce an international arbitration award, leading to delays and complications. A notable instance involved the annulment of an international arbitration award due to ambiguous norms. This study employs a normative research methodology with a theoretical approach to highlight the misalignment between international arbitration awards in Indonesia and Gustav Radbruch's Theory. The findings indicate that the lack of a balanced approach to justice, conflicting norms resulting in legal uncertainty, and the failure to provide benefits to all parties contribute to this misalignment. According to Radbruch, law aims to achieve justice, legal certainty, and expediency, with clear and logical provisions necessary for legal certainty and laws serving the diverse interests of all parties for expediency. The issuance of the Republic of Indonesia Supreme Court Regulation No. 3 of 2023 represents an effort to improve Indonesia's arbitration law. Revising Indonesian arbitration law is essential to align it with Radbruch's Theory, ensuring justice, legal certainty, and expediency in international arbitration awards.

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