Arbitration Clauses Research Articles

Development of Mining Sector of Mongolia: Investor-State Arbitration and International Investment Agreement Clause Dilemma

Development of Mining Sector of Mongolia: Investor-State Arbitration and International Investment Agreement Clause Dilemma

The Law Applicable to Petrolume Contract

As the oil industry is the largest industry in the world, and with the oil contract as the object of these activities, it is imperative to discern some of the issues surrounding it. Producing countries intend to maximize profits from the exploitation of their natural wealth, while consuming countries want to guarantee supply at the lowest possible price. It is important to understand the focus of conflicts in this sector. These are linked, on the one hand, to the need for oil, the decrease in new reserves and the increase in its exploitation. On the other hand, we have the political instability of the producing countries, the disrespect for the environment and social rights of the population on the producing States. This contract has the State and the investor as protagonists. They are often concluded under the aegis of bilateral or multilateral investment agreements between the producer country and the investor's country of origin. Since they are strategic natural resources, the producing State seeks to safeguard the interests of its population. Thus, it is common to include special clauses, maxime stabilization clauses and arbitration clauses. In its regulation, whether in the negotiation or conclusion stages of the contract or even in the dispute resolution phase, an appeal to International Commercial Law is required, covering both UNIDROIT principles and Lex mercatoria, configured here in Lex Petrolia.

The Supreme Court's Lamps Plus Arbitration Decision: A Fading Light for Class Actions

Since the 1980s, the United States Supreme Court has dramatically expanded the legal framework for arbitration, and through this expansion, the Court has minimized the role of the judiciary and reshaped the civil justice system. More specifically, the Court has enabled stronger parties with bargaining power, typically corporate parties, to opt-out of the traditional court system and create their own private system of justice, which is largely unsupervised and covers virtually every type of claim in America. Consequently, the civil justice system has become increasingly privatized and millions of ordinary consumers and employees have lost access to the courts, including the ability to proceed collectively as a class. During its October 2018 Term, the Supreme Court decided Lamps Plus, Inc. v. Varela, a splintered decision involving the controversial issue of class procedures in the context of an employment dispute. As a result of Lamps Plus, a company can unilaterally limit its own class action liability through an arbitration clause. This Article has three main goals. First, the Article heavily criticizes numerous flaws with the majority’s decision. Second, the Article explores the limited opportunities that remain for class proceedings when a consumer or employee is bound by an arbitration clause. Finally, the Article examines an unanswered, critical question left open in Lamps Plus: whether an arbitrator or court should determine if an arbitration clause permits class proceedings. This Article proposes a novel solution, whereby both a court and arbitrator jointly collaborate to determine different aspects of the class arbitration problem.

Hubungan Hukum Klausula Arbitrase Dengan Yurisdiksi Pengadilan Negeri

ABSTRACTThis research analyzed a Distribution Agreement between Roche Indonesia company (“Roche”) and distributing company Perusahaan Dagang Tempo (“Tempo”) which had an arbitration clause and verdict of South Jakarta District Court in Roche-Tempo case consisted of Putusan No. No.454/Pdt.G/1999/PN.Jak.Sel dated 29 May 2000. In distributing Roche’s pharmaceutical products in Indonesian domestic market, Roche had a distribution agreement with Tempo as its sole distributor. During the contract period, Roche terminated part of the contract unilaterally, which suffered Tempo. Tempo then filed a lawsuit against Roche to South Jakarta District Court, which was then rejected by Roche, claiming that the District Court had no jurisdiction over the case since the Distribution Agreement had an arbitration clause stipulating that any dispute must be settled arbitration, not the court. This Research was aimed to observe and to analyze the legal forces and the existences of arbitration clause in the Distribution Agreement viewed from Law No.30 of 1999 on Arbitration and Alternative Dispute Resolution (“Arbitration Law”). The research was also to find out whether or not the consideration of the Judge in deciding a dispute of an agreement which involves arbitration clause was in accordance with Arbitration Law. This research applies juridical normative approach with the specification of analysis descriptive research, as well as qualitative normative data analysis method. This research showed that the arbitration clause in the Distribution Agreement had a legal force and binding capacity over Tempo and Roche. Tempo’s denial of this clause by filing the case to the district court was clearly inappropriate and dishonor the agreement. As for the South Jakarta District Court, which claimed that it had jurisdiction over this case was not in accordance with Arbitration Law. Keywords: Arbitration Clause; Distribution Agreement; Court Jurisdiction; Roche; Tempo

Commercial Agents, the Directive and European Private International Law

The protection of commercial agents under Directive 86/653 in international cases raises questions of private international law. Here, several different fact situations are analysed: In, first, the normal single market case where commercial agent and principal both are active in Member States, Article 3 (4) Reg. Rome I assures protection of the commercial agent even where the law of a third country has been chosen by the parties. Where, second, the principal is from a third state but the commercial agent is active in the single market, the European Court of Justice (ECJ) in Ingmar has ruled that the protection according to the Directive applies. Its rules then should be considered as overriding mandatory provisions in the sense of Article 9 Reg. Rome I. Where, third, the protection provided for by the Directive has in Member State law been extended to commercial agents not covered by the Directive, this extended protection according to the UNAMAR judgment of the ECJ may under certain conditions override even the law of another Member State – and the Belgian Court of Cassation has actually decided in this sense. In the specific case, though, the result is odd and apparently helped to oust an arbitration clause. Fourthly, in case of an extra-EU commercial agent and an EU-principal, according to the ECJ case Agro the protection foreseen by the Directive need not necessarily be granted to the foreign commercial agent by the applicable Member State law. This, according to the ECJ, even is the case where the EU-provisions have been transplanted into the legal system of the third state where the commercial agent is active. It is shown that this is very questionable and that the third state rule can – similarly to Ingmar – be an overriding mandatory provision. The restrictive Article 9 (3) Reg. Rome I here poses some problems, which, however, can be overcome. The Belgian Enterprise Court in Ghent in fact used Article 7 Rome Convention

Odd Arbitration Clause, Reflecting Disagreement, Held to Be Inexistent. Note on the Judgment of the Swiss Federal Supreme Court of 18 May 2020

Odd Arbitration Clause, Reflecting Disagreement, Held to Be Inexistent. Note on the Judgment of the Swiss Federal Supreme Court of 18 May 2020

Some preliminary findings regarding Kosovo legislation in the field of consumer protection with special emphasis in arbitration clauses in consumers contracts

Although the Kosovo Law on Consumer Protection has been harmonized with the EU Directive on Unfair Contract Terms, several inconsistencies are still prevalent in other pieces of legislation, which in turn diminish the effective protection of consumers in line with the aim of the said Directive. The present paper aims at introducing some preliminary findings of the author’s doctoral thesis which can serve as a basis for further improvement of the existing legislation in the field of consumer protection. Full harmonization of the consumer protection legislation with the Unfair Terms Directive entails not only the verbatim transposition of the said Directive into one piece of legislation but an alignment of the entire legislative framework to this end, as well as the development of the court practice in line with the CJEU case-law.

The Economics of Class Action Waivers

Many firms require consumers, employees, and suppliers to sign class action waivers as a condition of doing business with the firm, and the US Supreme Court has endorsed companies' ability to block class actions through mandatory individual arbitration clauses. Are class action waivers serving the interests of society or are they facilitating socially harmful business practices? This paper synthesizes and extends the existing law and economics literature by analyzing the firms' incentive to impose class action waivers. While in many settings the firms’ incentive to block class actions may be aligned with maximizing social welfare, in many other settings it is not. We examine conditions in which class action waivers can compromise product safety, facilitate anticompetitive conduct, and support harmful employment practices. Our analysis delivers a more nuanced, policy-based critique of the recent US Supreme Court cases, highlights several new unresolved issues, and identifies future challenges for legal scholarship.

Avaliação humana da tradução automática de combinações lexicais especializadas: o caso do Google Translate e do DeepL

Este trabalho se propõe a avaliar a tradução automática feita pelos sistemas Google Translate e DeepL especificamente em relação a combinações lexicais especializadas (L’HOMME; BERTRAND, 2000) compostas por verbo+substantivo extraídas de textos jurídicos chamados “cláusulas arbitrais”. Nós apresentamos uma metodologia para selecionar as combinações lexicais especializadas e avaliar a adequação e a fluência das traduções produzidas pelos sistemas em questão. Os resultados obtidos estão alinhados com recentes pesquisas na área de tradução automática baseada em redes neurais (NMT) que indicam que esse tipo de tecnologia tem um desempenho melhor no parâmetro “fluência” do que no parâmetro “adequação” (KOEHN; KNOWLES, 2017). Em relação à precisão terminológica, houve ocorrências de tradução de termos diferentes na língua-fonte para o mesmo termo na língua-alvo em uma mesma frase, o que muitas vezes pode ser inadequado em textos técnicos e contraria a percepção bastante comum de que a tradução automática produz resultados consistentes, sendo mais adequada à tradução especializada. Ainda assim, e apesar das limitações apontadas neste estudo, as avaliações das traduções das combinações lexicais foram bastante satisfatórias.

The distinctive status of international arbitration agreements in English private international law?

Abstract This Case Note critically discusses the Court of Appeal’s recent decision in Enka v Chubb [2020] EWCA Civ 574, where it held that (i) the doctrine of forum non conveniens (FNC) can never apply where an English court is asked to determine if a London arbitration agreement should be enforced by injunction, and that (ii) the ‘separability’ of an arbitration clause from the contract containing it entailed that, absent an express choice of law for it, there was a ‘strong presumption’ that the parties implicitly chose the seat law as its proper law. In doing so, the Court abandoned its previous approach in Sulamérica v Enesa, and indirectly cast doubt on its recent suggestion in Kabab-ji v KFG that ‘implied choices’ of law arguably involved the implication of a term into the arbitration agreement on ‘business efficacy’ grounds. Further, the Court appeared not to acknowledge that, outwith the arbitration context, (i) ‘FNC waiver’ clauses and exclusive jurisdiction agreements do not categorically foreclose FNC, and that (ii) ‘implied choices’ of law should not be casually inferred nowadays. The Court’s analysis in Enka was distinctly arbitration-centric: it was minded to emphasize the non-derogability of the seat courts’ supervisory role, and the ‘separability’ of an arbitration agreement from the contractual document containing it. Enka is an intriguing example of how international arbitration doctrine, particularly as regards arbitration agreements, can materially diverge from cognate principles of private international law. Nevertheless, we question whether international arbitration agreements are truly distinctive enough to justify such differences in treatment. Our assessment is that the answer is probably ‘no’.

Privatizing Employment Law: The Expansion of Mandatory Arbitration in the Workplace

This article examines the institutional, political, and legal development of employment arbitration as it shifted from a Progressive Era form of justice enhancement to one co-opted by business-friendly conservatives arguably more concerned with protecting employers from litigation. While arbitration has a long history in the United States, the expanding use of mandatory, employer-promulgated arbitration clauses has more than doubled since the 2000s. In examining the nature of the shift, this article argues that it occurred through a gradual process of conversion in three institutional realms (1) legislative conversion, (2) private-sector conversion of public regulation, and (3) judicial conversion. Facilitated by a growing divide among Democrats on the value of arbitration, conservatives began to promote it in the 1970s and 1980s as backlash to the expansion of statutory employment rights. I argue that they did so by converting the institutional infrastructures of labor and commercial arbitration, a process continued by the private sector and Supreme Court. As such, this article argues that conversion is the product of multiple actors targeting multiple institutions, over decades, and with consequences for both the literature on institutional change and conceptions of equality under the law.

The (Underdeveloped) Use of Arbitration in International Insolvency Proceedings

The commencement of insolvency proceedings has mostly been perceived as a form of disturbance in the arbitration world because it could provide a cause to stay pending arbitration proceedings and hinder the enforcement of arbitral clauses and arbitral awards. Most of the academic discussion has focused on these issues. This article will discuss these issues only briefly. Instead, it aims at demonstrating that disputes which arise in the context of international insolvency proceedings could benefit from a more advanced use of arbitration. The article explains the arbitrability of disputes in insolvency proceedings and the limited scope of the public policy defense with the national insolvency laws functioning as a gatekeeper to arbitration. Consistent with existing insolvency case law in many jurisdictions, an arbitration-friendly approach is formulated. Following this approach, the article outlines disputes that could be resolved efficiently when addressed in arbitration. Insolvency, arbitration, arbitrability, bankruptcy, core bankruptcy issue, public policy, cross-border insolvency proceedings, related disputes

Оbjective arbitrability of antitrust disputes in Belarus and abroad

The article discusses approaches to objective arbitrability of antitrust disputes in the European Union, other foreign states and the Republic of Belarus. Particular attention is paid to the landmark cases Mitsubishi v. Soler Chrysler-Plymouth, Eco Swiss China Time Ltd v Benetton International NV, CDC v. Akzo Nobel. Based on the results of the analysis made, the authors conclude that, in the absence of a direct prohibition on the consideration of antitrust disputes in the Belarusian legislation by arbitration and lack of law enforcement practice in this area, arising of such disputes and inclusion of arbitration clauses on their settlement in contracts largely depend on the level of the development of the market as well as on the position of arbitration courts. They do not exclude the possibility of revising the national legislation on arbitration so that it included direct provisions on arbitrability of antitrust disputes as it is made in Lithuania and Sweden, at the same time admitting that for a positive attitude to arbitrability of antitrust disputes in the Republic of Belarus the appearance of relevant jurisprudence in this sphere will be enough

Arbitration Agreement and its Construction: An Analytical Study

The primary objective of this paper is to analyze how arbitration has evolved as an alternative to dispute resolution apart from regular and cumbersome court proceedings. The researcher has further dealt with the relevance of an arbitration clause in the contract. How one need to be cautious while drafting an arbitration agreement. In this paper researcher has extensively discussed the essential elements of an arbitration agreement and when an agreement will be considered to satisfy the provisions lay down under section 7 of the Arbitration Act, 1996. The researcher has also traced down the trend followed in India while interpreting the existence of valid arbitration agreement. The relevance of words may and shall use in the agreement and what impact it has on the validity of the contract. In this paper researcher has confined her discussion to the importance drafting arbitration agreement in Indian context and has not extended her research to other jurisdictions.

Nationalist International Commercial Arbitration?: The Supreme Court and State Law Equitable Estoppel in GE v/ Outokumpu

A unanimous Supreme Court decided on June 1, 2020 in an opinion written by Justice Clarence Thomas the question of whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958 (hereinafter the “New York Convention”) conflicts with domestic equitable estoppel doctrines that permit the enforcement of arbitration agreements by nonsignatories concluding that it does not. As the 11th Circuit Court of Appeals concluded that the New York Convention prohibits enforcement by nonsignatories, the Court reversed the 11th Circuit Court of Appeals and remanded the case for further proceedings. In that regard the questions of whether GE could enforce the arbitration clauses under principles of equitable estoppel or which body of law governs that determination were left to the 11th Circuit to decide in the remand. In a concurrence Justice Sonia Sotomayor - while agreeing with the court that the New York Convention does not categorically prohibit the application of domestic doctrines, such as equitable estoppel, that may permit nonsignatories to enforce arbitration agreements - noted that the application of such domestic doctrines is subject to an important limitation: any applicable domestic doctrines must be rooted in the principle of consent to arbitrate. From the point of view of separability doctrine, contract interpretation, treaty law it possibly brings into the arena of international commercial arbitration a particularly nationalist form of American approach to international trade. If that is the case, the New York Convention may be so twisted by domestic FAA Chapter 1 jurisprudence, that its efficacy for international contracts with American parties may be compromised. So we may have to again open the door to another international commercial arbitration convention being prepared.

Arbitration Clauses in Agreements Involving Consumers

Imperative provisions of Article 17 of the Law on the Protection of Consumer Rights of theRussian Federation and Article 29 of the Civil Procedure Code of the Russian Federationprovide the consumer with an option to file a lawsuit in court (at the location of therespondent organization, at his place of residence or at the place of residence, or at theplace of conclusion, or execution of the contract), despite the existence of a valid andenforceable choice of court consumer agreements. At the same time these provisions donot stipulate the question of whether the consumer has a similar opportunity if there is anarbitration clause in the agreement. The lack of the special rules governing the validity ofarbitration clauses with the participation of consumers in federal legislation led to a widerange of solutions to this issue in judicial practice, from the admissibility of incorporatingan arbitration clause in consumer agreements to the impossibility of considering thesedisputes by arbitration courts. The author critically evaluates the doctrinal positions onthe unacceptability of incorporating an arbitration clause in consumer agreements dueto the 2012 position of the Constitutional Court of the Russian Federation regarding thepossibility of choosing an alternative form of protection of rights by parties to a consumeragreement, Article 11 of the Civil Procedure Code, which allows to choose forms ofprotection of civil rights by applying to a court, arbitration court or arbitration court, as wellas provided for in Articles 45, 46 of the Constitution guarantees. At the same time, with thegeneral arbitrability of consumer disputes, the author justifies the need to establish specialrequirements for the validity of after the dispute arises. In connection with the absence inRussian legislation of special conditions for the validity of the arbitration agreement withthe participation of the consumer, the author explores the possibility of evaluation of thearbitration agreement based on the more substantive provisions provided for in Article428 of the Civil Code.

A desconsideração na arbitragem? O consentimento atrás do véu

The purpose of this article is to discuss the possibility of the application of the disregard doctrine in arbitration. The intent is to answer two questions regarding the application of art. 50 of the Brazilian Civil Code in arbitral proceedings. The first, whether the doctrine could be used to bound a third party which had not consented to the arbitration clause. The second, whether the disregard doctrine could be applied by the arbitrators when ruling on substantive issues of the dispute. The conclusion is negative to the first, as the consent is essential to the enforceability of the arbitration process, in light of art. 3 and 4 of the Brazilian Arbitration Act, and positive to the second, because the disregard doctrine contemplates a rule of liability determination that is applicable when the abuse of legal entity occurs. In sum, Brazilian Law does not admit the abuse of the legal entity as a criterion to make the arbitral process binding, as the analysis about the consent cannot be mixed with the requirements of the disregard doctrine. Disregard doctrine; Civil Code, art. 50; criteria; liability determination; party and third-party; consent; Brazilian Arbitration Act, arts. 3 and 4.

The Intra-EU Investment Dispute Settlement After Achmea: Towards an Integrated Model of Justice

The Achmea judgment marks the culmination of the systemic conflict between international legal system and EU legal system on international investment arbitration. The Court referred to the fundamental principles of autonomy, effectiveness, prevalence and direct effect of EU law, as well as the principle of fair cooperation between Member States and ruled that arbitration clause laid down in intra-EU BITs is incompatible with EU law. As a result, the primaute of European law seems to reserve to the CJEU the role of last authoritative institution for the interpretation and application of all EU law and totally exclude the potestas iudicandi of arbitral tribunals in investment disputes. The paper discusses Achmea’s consequences on the relationship between international and European legal order in intra-EU investment dispute settlement. After a general overview of the substantial and procedural framework of investors’ protection, the paper deals with jurisdictional issues in ISDS system before and after Achmea. It reviews all possible scenarios on arbitration proceedings by analyzing the past and the future of arbitrators’ jurisdiction in the European legal order. It considers the most recent developments in EU legal order, specifically the agreement between Member States on a plurilateral treaty for the termination of all intra-EU BITs. The focus is on the ubi consistam of EU law in international legal order and on how courts could cooperate for an integrated model of justice. The analysis of the current status quo of the ISDS will show that the lack of judicial communication between international courts affects the efficiency of investment arbitration, and specifically, about intra-EU issues, the absence of a mechanism which would allow to settle investment dispute in accordance with EU judicial order. The final part of the paper explores the attempts to reconcile the dispute resolution mechanism provided by investment treaties with the European jurisdictional framework, despite it was defined by the ECJ as “a complete system of legal remedies and procedures designed to ensure review of the legality of acts of the institutions”. Proposals for reforms of investor-State dispute settlement system could follow three different approaches (systemic, based on cross-fertilization communication techniques and integralist) in order to restate the relationship between private and public justice: which future for investment dispute settlement system after Achmea?

Arbitration as an Alternative to Litigation in Construction Projects

In many countries of the world, arbitration has been used as an alternate disagreement resolution technique, which remains a form of dispute settlement process outside a courtroom. Disagreements and conflicts in the construction industry have been viewed as disagreeable events in the implementation of projects by numerous researchers and these harm costs, performance, and complete objectives. Such conflicts have in the past been settled by litigation and lawsuits in which commercial ties were ultimately destroyed. The study employed four research objectives and research questions. Data used for the study existed from secondary and primary sources. Secondary records were assembled from related works on preceding studies although primary data were collected from fact-finding. The sample size is 100 respondents made up of staff from the Federal Ministry of Works and the state ministry of works in Owerri, Imo State, Nigeria. Four establishments of higher learning in Imo State were also covered. A list of contractors was assimilated from the federation of building and civil engineering contractors Imo State branch. The study exposed that arbitration has been established to be worthwhile and less time overwhelming. Furthermore, usage of arbitration is additional facilitated by the inclusion of an arbitration clause in most construction contracts which usually states that all disputes arising in the contract shall be settled by arbitration. The study concludes that the use of arbitration in dispute resolution in construction contracts not only minimizes cost and time but also facilitates cordial relationships among the parties after the dispute and this minimizes the incidence of project failure and abandonment in the construction industry. It recommended that in addition to proper education on the use of arbitration, there should be adequate enlightenment and awareness creation on the importance and use of arbitration in the building industry, especially in the informal sector.

Contractual Time Limits to Commence Arbitration

Arbitration and multi-tier dispute resolution clauses may contain a time limit to commence arbitration. The expiry of such a time limit could have different legal results. First, it could make the arbitration clause ineffective. Second, it could extinguish the claim or prevent its enforcement through legal proceedings. In the latter case, the contract provision about the time limit would have to be examined with regard to its compliance with mandatory provisions of the law applicable to limitation periods. Even the determination of the law applicable to limitation periods causes considerable difficulty. It is another difficult issue to determine which provisions of the law applicable to limitation periods are mandatory and, if so, whether the contract provision complies with the limits of the law. Once it is established that the contract provision is valid, the acts necessary to prevent the expiry of the time limit would have to be examined. limitation period, preclusion period, extinctive prescription, time bar, commencement of arbitration, mandatory rule, jurisdiction, applicable law, interpretation, validity.