Arbitration Decisions Research Articles

النظام القانوني للتحكيم الحكومي في التشريع اليمني: دراسة تحليلية

This study explores the topic of government arbitration in Yemen as the primary means of settling disputes arising between government entities. It aims to understand the conditions, procedures, and the formation of government arbitration panels responsible for resolving these disputes. Additionally, the study seeks to highlight legislative shortcomings in government arbitration. The research adopts a descriptive and analytical approach, addressing two main sectionsareas: the nature of government arbitration and the procedures involved in government arbitration. Several key findings emerged from the study, including the mandatory nature of government arbitration, determined by arbitration panels appointed by the Minister of Legal Affairs, with delays in the formation of these panels. The study also identified legislative deficiencies, such as the absence of organized procedures and the failure to specify the executing authority, the duration of the review process, and the possibility of challenging the arbitration decision. To address these shortcomings, the study recommends amending the relevant legal texts, including specifying the executing authority for government arbitration decisions and allowing appeals against government arbitration decisions before the Supreme Court to eliminate legislative conflicts regarding the dispute resolution period.

The Crisis in World Trade Law: How the Dust Is Settling

Abstract: Reform and extension of world trade law have stalled because of the WTO's consensus rule. The sense of crisis has been exacerbated by the US refusal to approve new members to the WTO Appellate Body, preventing settlement of disputes arising from current world trade law, and by the United States dropping out of the most promising plurilateral approach to extending world trade law. By unilaterally increasing tariffs, the Trump administration further indicated the US disregard for world trade law. After January 2021, President Biden quickly made clear that he would not reverse the US position on the WTO, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), or recent tariff increases. Other countries' responses to the blow to enforcing and extending world trade law were hampered by the COVID-19 pandemic that curtailed face-to-face meetings in 2020 and 2021, but the dust began clearing in 2023. In June 2023, the UK became the first new member of the CPTPP; China and Taiwan are next in the queue for accession. In 2023, Japan became the 53rd signatory of the Multi-Party Interim Appeal Arbitration Arrangement (MPIA), whose signatories recognize binding arbitration decisions on WTO rulings; the United States rejects the MPIA. The article ends by drawing conclusions about the future of the world trade system and the US response to initiatives supported by its major allies and other major trading nations.

Rethinking the Salini Test: A Comprehensive Examination and Proposal for Improvement in Defining International Investment

This dissertation critically examines the Salini test, a foundational tool in international investment law (IIL), with a specific focus on its fourth criterion: "Contribution to the Host State's Economic Development." Through an in-depth analysis of various case studies, the research highlights the inherent challenges and controversies surrounding the Salini test, particularly its potential rigidity and the subjectivity embedded in the economic contribution criterion. The study underscores the need for the Salini test to evolve in response to contemporary investment trends, such as green investments, social impact ventures, and the increasing importance of intangible assets. Drawing from past arbitration decisions, academic research, and expert opinions, the dissertation offers suggestions for refining the Salini test to make it more adaptable and relevant in the modern investment landscape. These recommendations encompass defining clear parameters for economic contribution, balancing economic inputs with other considerations, and introducing mechanisms for periodic review. Furthermore, the research forecasts the future of IIL with an improved Salini test, outlining both the opportunities, such as enhanced consistency and predictability, and challenges, including implementation hurdles and potential over-complexity. In conclusion, as the international investment domain continues to transform, the Salini test must be rethought and refined to remain a robust and pertinent instrument in this ever-evolving field.

Penyelesaian Sengketa Wanprestasi Secara Alternatif Melewati Badan Arbitrase Nasional Indonesia (BANI)

Peaceful resolution of disputes is the main goal in the modern legal system. One form of peaceful resolution, namely arbitration, is recognized as an effective way to resolve disputes firmly and bindingly. Arbitration is part of Alternative Dispute Resolution (ADR), which includes various methods of resolution outside of court or litigation. In the context of resolving default disputes, the Indonesian National Arbitration Board (BANI) is an efficient option. This research aims to analyze the role and benefits of arbitration in handling default disputes, especially those related to BANI. The research method used is normative legal research by collecting and analyzing secondary data such as laws, regulations, arbitration decisions and related literature. The research results show that the default dispute resolution process through BANI involves several steps, including arbitration selection, trial process, and final decision. The advantages of resolving default disputes through BANI include speed, legal certainty through arbitration awards, and the diversity of arbitrators who can provide different points of view in resolving disputes. Based on research findings, the decision of the Denpasar District Court Class I A Number 3/Pdt.G/2017/PN.Dps is based on Article 3 of Law no. 30 of 1999 concerning Arbitration and Alternative Dispute Resolution. The judge stated that the District Court did not have the authority to decide disputes between two parties who were bound by an arbitration agreement. This shows that if a dispute occurs, the parties must resolve it through deliberation. If deliberations are unsuccessful, the resolution will be handed over to the Indonesian National Arbitration Board (BANI).

Decisions of international commercial arbitration as an object of review by a court of civil jurisdiction

The article is devoted to the analysis of the content and features of the international commercial arbitration decision. Attention is focused on the specified procedural document as the object of review by the judicial authority. At the same time, the relevance of the chosen topic for coverage in the scientific article is determined based on the data of judicial statistics and the importance of acquiring the finality by the decisions of the international commercial arbitration. From this point of view, the author analyzes the procedure of acquiring legal force and finality both of the decisions of the international commercial arbitration and of the judicial act of the appellate instance, which is adopted based on the results of the review of the arbitration decision.
 Given the properties of the court decision, the work draws attention to the enforceability of the international commercial arbitration decision and other signs, the presence of which indicates the legal force and binding nature of the specified procedural document. In addition, a question is raised about the possibility of supplementing the objects of review by a court of civil jurisdiction of additional procedural documents of international commercial arbitration. In connection with this, the subject of consideration in the work is the types of decisions of international commercial arbitration and the requirements that such acts must meet. The review of the decisions of the specified arbitration by the court of appeal of civil jurisdiction is differentiated from the activity of the latter to review the decisions of the local court in the appellate procedure according to the rules of the Civil Procedure Code of Ukraine. Attention is drawn to the complete lack of level arrangement when applying to a judicial authority with a appeal to cancel an international commercial arbitration decision.
 The conclusions note the need to improve the civil procedural legislation and international commercial arbitration in relation to the optimization of the objects of review of acts of the specified body. Along with this, the author does not support the proposal expressed in the scientific literature regarding the change of court jurisdiction for reviewing the decision of international commercial arbitration.

Challenges of Legal Guarantees for the Enforcement of Arbitral Awards in International Commercial Cases

Background: The historical determinants of the appearance of international arbitration correspond to the general tendency of the complication of legal relations of highly developed civilisations, where business processes are its drivers. It is expected that a complex transnational business layered on different levels of civilisation is characterised by an increase in the probability of misunderstandings regarding the proper fulfilment of obligations, the resolution of which is referred to as international arbitration, which, by nature, is more effective than national courts. In this regard, within legal doctrine and among legal practitioners, there is an ongoing discourse on strategies to mitigate risks associated with the execution of international arbitration decisions and related issues. Methods: The research employed a methodological toolkit encompassing formal and dialectical logic, a synergistic methodological approach. The primary method within this framework was the synergistic analysis of the transformation of formal-legal sources and the corresponding application practices. Additional methods included historical-legal, comparative-legal, formal-dogmatic methods and contextual analysis. Results and Conclusions: Formal-legal guarantees for the execution of international arbitration decisions represent a system of requirements governing the procedural and actual actions of state- authorised persons (bodies) that ultimately lead to such execution. The basis of such guarantees is the adequacy of the subject to which the method is applied. Firstly, the arbitrators must make the decision. Secondly, this concerns a property (commercial) dispute. Thirdly and fourthly, enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought and arising out of differences between persons, whether physical or legal. These signs follow from the corresponding specific acts of private international law. The enforceability of an arbitral award depends on the timely and appropriate actions of the parties to the contract. Even during the negotiation of a foreign economic agreement, the result of an audit of the business partner’s reliability in terms of its ability to fulfil its financial and/or other obligations properly should be obtained.

Resolution of investment conflicts between the state and foreign companies in the context of crisis prevention

Currently, there are no conditions in Ukraine to ensure a high-quality business climate that would guarantee the security of investments. In the past, this has already led to conflict situations, which has resulted in a number of cases being brought against the state. The purpose of the study is to investigate the mechanism of resolving investment conflicts between the state and foreign companies. For this task, such methods as formal legal, dogmatic, legal hermeneutics, logical analysis, deduction, induction, and others were used. In the course of the study, an analysis of the international doctrine that regulates the provisions for resolving investment disputes, namely, the Washington Convention and the Seoul Convention, was carried out. It is determined that the number of foreign direct investments in Ukraine from 2012 to 2023 significantly decreased, and the investment attractiveness index reached a critically low value over the years, which indicates a negative attitude of business to current conditions. It is indicated that as a result, 15 proceedings were initiated at the International Centre for Settlement of Investment Disputes. It is revealed that in these cases, violations such as failure to provide equal and fair treatment are most often reported. Based on this, the need to improve the investment climate in Ukraine is determined. It is proposed to reduce the cost of access to the protection system for small and medium-sized enterprises; reduce the time for dispute resolution; and ensure the consistency and accuracy of arbitration decisions. The practical value of the results obtained is that the implementation of the recommendations provided will help to attract foreign investment necessary for the recovery and development of the country’s economy, and will also eliminate the problematic factors that lead to the opening of proceedings against the state

An Analysis on Top Court Cases on Intra-Group Lending Finance Acquisition

This article analyses contradictory arbitral decisions by Portuguese courts on the deduction for tax purposes of interest on loans taken to acquire shares and the Supreme Court’s ruling refusing to harmonize the existing case law on the matter.

LEGAL REVIEW RELATING TO CANCELLATION OF ARBITRATION AWARDS THAT ARE ALREADY POWERFUL (INKRACHT) AND FINAL RELATED TO ARBITRATION LAW NO. 30 OF 1999 CONCERNING ARBITRATION CASE STUDY PT. KRAKATAU POSCO AGAINST INDONESIAN NATIONAL ARBITRATION BOARD, DKK AT SERANG STATE COURT

In this thesis, the author discusses the determination of several deviations related to the cancellation of the Arbitration Award as regulated in Law Number 30 of 1999 concerning Arbitration and Alternative Dispute Resolution. In this case, the parties and the judges themselves tend to ignore the existence of the Arbitration Institution, the agreement on the absence of an Arbitration Clause is considered a fake document and a deception by the Arbitration Applicant. Krakatau Posco (Arbitration Applicant) against the National Arbitration Board (Arbitration Respondent I) and PT. Krakatau Enggering (Respondent of Arbitration II) in Decision Number 105/Pdt.Arbt/2018/PN.Srg in Serang District Court Class IA. Arbitration clauses are carried out when the contract agreement is about to start between the two parties to avoid disputes before or after in the event of a dispute both parties must file the dispute at the Indonesian National Arbitration Board (BANI). The problems discussed in this thesis are regarding the Determination of Number 105/Pdt.Arbt/2018/PN.Srg. dated September 21, 2018, the judge considered that the absence of the Arbitration Clause was considered a false document and a ruse. The research method used in this thesis is normative juridical through a law approach. The sources used are in the form of secondary legal materials with library techniques that are analyzed qualitatively. The result of this study is the cancellation of the Arbitration decision which was granted by the Panel of Judges at the Serang District Court Class IA based on the fact that there was no Arbitration Clause agreement between the two parties wheKeywords: Arbitration Cancellation, Arbitration Clause

Consumer Empowerment: Safeguarding Consumer Rights Through BPSK’s Arbitration Post the Constitutional Court Decision

The arbitration decision by BPSK, can be filed with objections in accordance with Law 8/1999 and annulment under Law 30/1999. These two actions raise questions related to the arbitration process to resolve consumer disputes, consumer protection, and the impact of the Constitutional Court’s decision on the annulment of arbitration awards. This is because both actions are contrary to the final and binding nature of the arbitration award. Through the doctrinal research method, it was found that three years since the Constitutional Court’s Decision, there has been an increase in decisions related to the annulment of arbitration awards and objections to BPSK decisions. The Constitutional Court Decision has two contrary impacts. It makes easier for the aggrieved party in the process of resolving consumer disputes through arbitration to file for annulment or objection. Meanwhile, it also makes the process of consumer protection through arbitration lose its final and binding force.

Consumer Empowerment: Safeguarding Consumer Rights Through BPSK’s Arbitration Post the Constitutional Court Decision

The arbitration decision by BPSK, can be filed with objections in accordance with Law 8/1999 and annulment under Law 30/1999. These two actions raise questions related to the arbitration process to resolve consumer disputes, consumer protection, and the impact of the Constitutional Court’s decision on the annulment of arbitration awards. This is because both actions are contrary to the final and binding nature of the arbitration award. Through the doctrinal research method, it was found that three years since the Constitutional Court’s Decision, there has been an increase in decisions related to the annulment of arbitration awards and objections to BPSK decisions. The Constitutional Court Decision has two contrary impacts. It makes easier for the aggrieved party in the process of resolving consumer disputes through arbitration to file for annulment or objection. Meanwhile, it also makes the process of consumer protection through arbitration lose its final and binding force.

Arbitration in Agreement Dispute (Perspective of Law Number 30 Year 1999)

Background. In business relations between the parties in the development does not rule out the possibility of problems that require solutions. Purpose. This research aims to find out the process of resolving civil disputes through the Aribitrase court based on Law Number 30 of 1999 Method. The method in this research uses a normative juridical approach, which means that a study is carried out based on laws and judicial decisions that have permanent legal force. In the collection of legal materials using two ways, namely literature research by reviewing the literature and opinions of legal experts related to research problems. Results. The results of the research can be concluded that the arbitration agreement cannot stand and cannot bind the parties if the arbitration agreement does not coincide with the main agreement, which will be handled by the arbitration agreement is regarding disputes arising from the main agreement, so a civil dispute can be submitted for resolution through the arbitration court if it meets the subjective and objective requirements in the Basic Agreement (JOC). the parties agree that if there is a civil dispute it will be resolved through arbitration. Conclusion. The Arbitration institution has a binding nature on the parties and is final in the sense that the parties cannot appeal to the general court after the Arbitration decision.

Legality of Online Arbitration Decisions in Indonesia Based on the Theory of Legal Certainty

This thesis research was carried out due to the development of information and communication technology which has an impact on trading activities. The impact of these developments is currently the existence of trade conducted online, which results in the emergence of the use of digital contracts as a form of agreement which often causes disputes and in business prefers online dispute resolution, especially online arbitration. However, in Indonesia the legal basis for online arbitration has not specifically regulated online arbitration awards. This research was conducted with the aim of knowing and studying the legality of online arbitral awards in Indonesia based on the theory of legal certainty and also the relevance of Law Number 30 of 1999 about Arbitration and Alternative Dispute Resolution to online arbitration, especially regarding online arbitration awards in Indonesia. This research is a normative research with a conceptual approach and statutory approach. The data source is in the form of secondary data consisting of primary legal materials and secondary legal materials, which are analyzed using legal analysis methods. Drawing conclusions using a deductive thinking process. The theory of legal certainty is used as an analytical knife in reviewing research results. The results of the study show that online arbitral awards when associated with Gustav Radbruch's theory of legal certainty still occur in a dilemmatic choice and Law Number 30 of 1999 concerning Arbitration and Alternative Dispute Resolution has not yet accommodated arrangements regarding online arbitration in Indonesia, especially regarding online arbitration awards, this causes Even though the decision has legality, if there is no law that regulates it for certain, then the aspect of legal certainty does not necessarily exist.

The impacts of third-party funding on cost decisions in investment arbitration

ABSTRACT The involvement of Third-party Funding (TPF) in investment arbitration disrupts the balance between the parties to an arbitration. Though a party’s reliance on external funding represents its impecuniousness to participate in an arbitration, many financially sound investors take TPF to reduce the risk associated with bringing a claim or are unwilling to stick their working capital in arbitration. The existence of TPF in arbitration is a material factor in deciding an order for security for arbitration costs. The third-party funder funds an investor to initiate arbitration and gets benefits from a cost award. However, the funder does not share an investor’s responsibility to pay an adverse cost. The funder’s immunity from adverse costs aggravates the demand for security for costs in a funded arbitration. While a claimant’s reliance on TPF is considered a material factor in issuing an order for security for its cost, this consideration, counter-wise, legitimizes the cost of funding as arbitration costs. Accordingly, the funding cost can be recoverable through an adverse cost award. The TPF consideration in an order for security for costs makes the funding arrangement a part of the arbitration proceedings. If the funding position of a party is considered in deciding an application for security for costs, it deserves equal consideration in awarding adverse arbitration costs. Establishing the funding cost as arbitration costs will increase the cost of the international arbitration and unjustly transfer public money to private entities.

THE COMPLEXITY OF AUTONOMOUS TAXATION IN THE TAX ARBITRATION JURISPRUDENCE OF THE CENTER FOR ADMINISTRATIVE ARBITRATION

This research has the overall objective of analyzing the complexity of the Autonomous Taxation (hereinafter TA), in the context of the Portuguese tax system, through an approach to the tax arbitration case law of the Administrative Arbitration Center (hereinafter CAAD). The frequent litigation between taxpayers and the Portuguese Tax and Customs Authority (abbreviated as AT) about this additional tax justifies the relevance of this study. Based on the analysis of tax arbitration jurisprudence, more specifically of 443 CAAD cases, whose object of discussion corresponded to the TA issue, it was found that the litigation in arbitration courts is significant, resulting in an excessive level of tax litigation between taxpayers and the AT. Therefore, for the study in question, 93 arbitration decisions related to the tax complexity of the TA were selected, from which it was found that the existence of a high number of cases in CAAD is associated with a high amount spent on procedural costs, and that the costs related to cases about the TA and brought before CAAD are quite expensive, especially for taxpayers.

The reform of the court system and judiciary of the carpathian ukraine dur-ing the period of the second regional government of augustin woloshyn (end of 1938 - early 1939)

At the current stage of the development of legal science, the historical and legal research of the national system of judicial bodies and the problems of its reform is relevant. The transition of Ukraine from totalitarianism to a democratic, legal, social state contributed to the formation of a new system of judicial bodies, designed to meet the new historical conditions of social development and world standards.The problem of determining the role and place of the judiciary in the legal state, the necessary conditions for the construction of which are the affirmation of the autonomy and independence of this authority, the improvement of the existing system of relations between its bodies and other branches of government, and the optimal balancing of the mechanism of their interaction and mutual control, is gaining considerable relevance. Since the territories of modern Ukraine have been part of various state entities throughout history, the analysis of the reform of the judicial system and the judiciary in these territories is interesting and important in terms of the given problem.The article is devoted to the reform of the judicial system and judiciary of Carpathian Ukraine, which underwent a kind of evolution from autonomy to a federal system within Czechoslovakia and the declaration of independence (end of 1938 – beginning of 1939). It analyzes the process of evacuation and reformation of various judicial bodies caused by the decision of the first Vienna Arbitration (October 2, 1938) on the transfer of a large part of the territories of Czechoslovakia to Hungary, the Constitutional Law on the Autonomy of Subcarpathian Rus dated November 22, 1938 No 328 in terms of functioning, competence and principles of the formation of the judiciary, as well as the order of the second regional government of A. Voloshyn regarding the procedure and principles of the judiciary in the region.

On- and off-duty conduct(or): a feminist critical discourse analysis of two dismissals of a railway worker

PurposeThe authors sought to examine how hegemonic masculinity and sexism functioned in a storied, historic corporation, a test of MAnne's (2017) claim that misogyny is a structural phenomenon rather than being about anger and hatred of individual men.Design/methodology/approachThis study was an archaeological excavation of discourse in a well-documented employment relationship. The researchers were informed by feminist poststructuralism and drew on critical discourse analysis of labour arbitration and media from the case of a woman, twice wrongfully dismissed.FindingsThe authors concluded that the employer was the site of hegemonic masculinity, which led to a train conductor being repeatedly targeted and demeaned in a bad faith and discriminatory manner for disrupting the conductor’s employer's patriarchal strictures. The authors found that misogyny shaped the conductors’s experience as a repeated pattern of abuse, a gendered feature of a patriarchal organisation, and a coercive matter of maintaining the conductor’s subordination. The authors also found that the male arbitrator in the conductor’s second dismissal arbitration became complicit in misogyny by penalising the conductor for acts of resistance, giving the employer what the employer wanted, to purge the conductor for violating the patriarchal norms.Originality/valueThe authors traced how a historic corporation demonstrated vulnerability to the resistance of a lone female worker, who faced discriminatory, disturbing and bad faith managerial behaviour in the creation of the conductor’s own meaning and resistant identity. The authors concluded that evidence of the regulation of employee relations, such as the decisions of arbitrators, can reveal the processes and outcomes of work under hegemonic masculinity, sexism and misogyny.

Annulment of an International Commercial Arbitration Award: The Ukrainian Experience

Background: The development of foreign economic relations between business entities is the key to a stable economy of each country as a whole. During the implementation of these relations, the emergence of disputes and the procedure for their resolution is one of the main prerequisites for giving preference to alternative dispute resolution, namely international commercial arbitration. Despite the existence of unified rules and standards for the recognition and enforcement of international commercial arbitration awards, which are enshrined in the New York Convention of 1958, many issues arise in the doctrine of international civil procedure and law enforcement practice. These issues are the result of an inconsistent approach to arbitration in the national legislation of the member states of the New York Convention of 1958. Methods: The article will consider the distinction in the definitive approach of ‘challenging’ and ‘annulment’ the decision of international commercial arbitration through the prism of comparative legal regulation and evaluation of the results of both the domestic doctrine of arbitration and foreign scientific schools. In addition, during the analysis of the numerical judicial practice of national courts, the problematic issues of the procedural procedure for annulment of decisions of international commercial arbitration and the grounds for their annulment are considered. Results and Conclusions: Among the results, some gaps and contradictions were discovered, in particular, the ideas of ‘challenging’ and ‘appealing’ such awards. These procedures differ in that within the framework of the procedure for challenging the decision of international commercial arbitration, and the state court has no right to review such a decision on the merits.

EXAMINING THE PROVISIONAL ORDER IN ARBITRATION IN DOMESTIC LAW, EXPLAINING THE NEEDS, GAPS, AND HARMS OF THE CURRENT SITUATION

Iran’s legal system is encountering numerous ambiguities and gaps due to evident and unavoidable weaknesses in the field of legislation and the existence of a dual structure of laws, which has caused inadequacies and challenges for the arbitration institution. As a result, the public desire to refer claims to arbitration has decreased. One of the most critical legal weaknesses in arbitration can be the failure to determine the independence and impartiality of the exclusive arbitrator, conflict in jurisdiction and arbitration, and the creation of an arbitration institution in the case of divorce in a faraway from the existing conditions. The current conditions of the philosophy of arbitration, the gaps about the law regarding the expert opinion issued by the arbitrator, and the legal ambiguity regarding the issuance of a provisional order and the fulfillment of the request, at the same time, many laws seem obsolete and old when it comes to arbitration. In addition to the legal system's weaknesses regarding the arbitration institution, the educational system does not work properly to improve the level of knowledge of the people and law students, especially lawyers and judges, and the judicial system deals with the content of any protest with many interventions. In this way, it has taken the strength of the arbitration institution and its votes. On the other hand, it has caused the accumulation of arbitration votes in the judicial system, while this possibility exists in most of the world's legal systems. A kind of judicial supervision of the arbitration award is foreseen in the form of the possibility of protesting the arbitration award. This is only limited attention to a part of the decision issued by the arbitrator. Also, on the other hand, courts, in many cases prevent the implementation of arbitration decisions for many reasons, and all these issues have caused the lack of development of arbitration.

Addressing Post-Award Court Proceedings In Taiwan: A Case To Exclude Judicial Review

Arbitration is widely used in public construction cases in Taiwan. Unfortunately, recent cases have shown that while arbitral awards may be made within a reasonable time, delays in the post-award in court proceedings is a cause of dismay and frustration for the successful party. This paper considers the possibility of excluding the right of recourse to courts against arbitral decisions, by either abolishing it by domestic law or permitting parties to the contract out of such. It concludes with the proposal for minor legislative change to the Taiwan Arbitration Law. Taiwan, setting aside awards, public construction, government procurement, concession agreement, exclusion agreement, STSP v Sheus, and manifest unfairness.