Arbitration Of Disputes Research Articles

Article Index

<i>Recent amendments to the Italian Law of Civil Procedure (‘ICCP’) have not removed the existing ban on intra-corporate dispute (‘ICD’) arbitration for Italian listed companies. As we believe that ICD arbitration can provide redress to shareholders and improve management accountability, we criticize this approach and develop a ‘model’ for ICD arbitration that brings together (1) the corporate governance perspective, for a proper balance between the flexibility of the adoption of the arbitration clause and the protection of minority shareholders; (2) the capital markets perspective, for the disclosure to the public of relevant information in order to protect investors and build trust; and (3) the arbitration perspective, for the adoption of specific rules (a) to allow the participation of a potential great number of parties to the procedure, (b) to ensure the appointment of qualified and independent arbitrators in a typical multi-party dispute, and (c) to ensure that arbitrators may adopt conservatory and interim measures. Finally, we suggest that it might be beneficial to promote such model also at the EU level, as such benefit would be, at least, two-fold, both in terms of harmonization (or, better, level playing field) of the corporate law enforcement mechanisms and of serving the purposes to which recent EU corporate legislation seems to be leading.</i><br>

Corporate Arbitration and Listed Companies: A Nice Couple in Capital Markets? The Case of Italy and a European Perspective

Recent amendments to the Italian Law of Civil Procedure (‘ICCP’) have not removed the existing ban on intra-corporate dispute (‘ICD’) arbitration for Italian listed companies. As we believe that ICD arbitration can provide redress to shareholders and improve management accountability, we criticize this approach and develop a ‘model’ for ICD arbitration that brings together (1) the corporate governance perspective, for a proper balance between the flexibility of the adoption of the arbitration clause and the protection of minority shareholders; (2) the capital markets perspective, for the disclosure to the public of relevant information in order to protect investors and build trust; and (3) the arbitration perspective, for the adoption of specific rules (a) to allow the participation of a potential great number of parties to the procedure, (b) to ensure the appointment of qualified and independent arbitrators in a typical multi-party dispute, and (c) to ensure that arbitrators may adopt conservatory and interim measures. Finally, we suggest that it might be beneficial to promote such model also at the EU level, as such benefit would be, at least, two-fold, both in terms of harmonization (or, better, level playing field) of the corporate law enforcement mechanisms and of serving the purposes to which recent EU corporate legislation seems to be leading. Corporate Arbitration, Listed Companies, Intra-Corporate Disputes

중국 관련 ICSID 투자자 국가 분쟁 중재 사건 연구 - 중국의 ISDS 경험 및 전망을 중심으로 -

세계 제2의 경제대국으로서 중국의 국제투자 시스템도 빠르게 성장하고 있다. 중국 투자자들이 유치국을 상대로 소송을 제기하고 중국 정부가 외국인투자자로부터 소송을 당하는 국제투자중재 사건이 발생하고 있지만 중국의 대규모 해외투자에 걸맞지 않게 ‘투자자국가간 분쟁 해결(ISDS)’에 대한 중국의 경험은 많지 않다. ‘국제투자분쟁해결센터(ICSID)’에서 중재된 중국 관련 사건수를 보면 2021년 12월 현재 분쟁 건수가 14건(홍콩과 마카오 투자자 포함)에 불과하다. 특히 일대일로(一带一路) 구상으로 중국이 주요 양방향 투자국이 되면서 중국이 참여하는 투자자-국가 중재 사건의 비중이 높아질 것으로 보는 게타당하다. 이런 맥락에서 관련 사례에 대한 연구와 분석을 강화하면 중국 투자자들에게 향후 ISDS에 대한 경험과 통찰력을 제공할 수 있을 뿐만 아니라 현재진행 중인 ISDS 개혁 논의에 대한 중국의 대응방향을 예상할 수 있다. 이 논문은 제2장에서 ICSID에 대한 중국의 제한된 경험에 초점을 맞추어 종결되거나 실체적 절차가 진행된 네 건의 대표적 사례, 즉 ICSID에서 중재된 중국 기업이 ICSID 메커니즘을 사용하여 유치국 정부를 제소한 사례인 셰예슨(谢业深) 대 페루 정부 사건과 중국 Ping An 그룹 대 벨기에 정부 사건, 그리고 외국 투자자가 중국 정부를 상대로 제소한 사례인 대한민국 안성주택주식회사대 중국 정부 사건과 말레이시아 Ekran Berhad 대 중국 정부 사건의 사실관계를 살펴보고, 제3장에서 대상사건들에서 중재판정부의 관할권, 최혜국 대우, 간접수용 등의 법적 쟁점에 대한 각 당사자들의 주장과 중재판정부의 판정 결과를 조명하고 중국의 신세대 양자투자협정의 상세화와 투자분쟁 해결 태도의 적극적 변화로 대표되는 양자 및 다자간 투자협정에 대한 중국의 새로운 접근법도 소개한 후, 제4장에서 대상사건들에서의 중국과 ISDS의 제한된 상호작용에서 시사점을 찾아서 중국이 앞으로 ISDS를 더욱 잘 활용할 수 있는 합리적 방안을 제시하고, 동시에 현재 진행중인 ISDS 개혁에 대한 새로운 제안과 국제투자중재에 대한 보다 적극적이고 개방적인 자세로 중국의 입장을 간략하게 평가한 후 결론에 갈음하여 향후 예상되는 중국의 ISDS 관여 국면을 전망하였다.

Providing electronic internet evidence in Russian notarial and judicial practice for civil law disputes

The current study is mainly devoted to the analysis of the current Russian legislation and the emerging notarial and judicial practice in the field of providing electronic evidence, the features and problems of procedures for their notarization, the relevance and admissibility of electronic evidence in civil law disputes in courts of general jurisdiction and arbitration courts as a factor in stabilizing civil law turnover carried out in information and communication formats (digital economy). Moreover, the study considers the problems of legal recording electronic traces while noting the most significant aspects of this recording of the evidence and formulating recommendations for notaries and parties to judicial disputes. To that aim, a range of general scientific methods, including observational, descriptive, and qualitative approaches, are used. Based on the results, the Russian regulatory system must have mechanisms for fixing traces of such civil activity to use them as evidence in civil and arbitration disputes.

Whether China Should Implement International Tax Arbitration: A Study

In economic globalization, China plays an increasingly important role, and Chinese enterprises are speeding up the pace of going global. In this process, “going out” enterprises face prominent tax risks. Some countries adopt arbitration to settle international tax disputes, but China does not. However, the widely used MAP has many disadvantages, and tax disputes cannot be solved efficiently. To deal with this, the Pillar 1 Blueprint calls for mandatory binding arbitration of disputes over Amount A, which can be seen as a future trend. This paper suggests that China should adopt temporary means of tax arbitration and enhance taxpayers’ participation in the arbitration procedure. In addition, setting up tax dispute prevention measures to protect the interests of multinational enterprises to a greater extent.

ARBITRABILITY OF DISPUTES UNDER THE LEGISLATION OF UZBEKISTAN

This article focuses on the issues of arbitrability of disputes on the territory of the Republic of Uzbekistan. The categories of disputes of contractual and non-contractual nature are considered in detail through the prism of their arbitrability in accordance with the current legislation of Uzbekistan with the introduction of precise regulatory legal acts. The article targets both law school students and practicing lawyers in the field of arbitration and state proceedings.

Research on Copyright Protection of Digital Works Based on Multi-blockchain

Background: With the development of network technology and the continuous increase in user-generated content on the Internet, the protection of digital copyright is particularly important. Objective: In order to better protect the copyright of digital works, this paper proposes a Polkadot scheme based on the advantages of blockchain cross-chain technology. Methods: The scheme sets up three parallel chains, including digital work chain, copyright management chain, and dispute arbitration chain, and shows the information interaction process of Validators, Fishermen, Collators, and Nominators. Results: The research shows that the scheme has more advantages than a single chain or alliance chain. It has a shorter block creation time, better security, and availability. Conclusion: The findings provide new ideas for copyright registration, copyright trading, and infringement maintenance of digital works and also broadens the application of cross-chain technology of blockchain.

An Analytical Look at the Importance of a Legal Organization for the International Electronic Commerce Arbitration Body: Comparative Study between a Draft Law on Arbitration in the UAE and the French and English Laws

This study provides theoretical and practical viewpoints regarding the law required to be applied to proceedings in the field of international commercial arbitration. The Emirati arbitration has been compared under UAE, French, and English laws. The regulations, rules and procedures of international arbitration bodies, institutions and chambers have also been undertaken in this study. This study presents the subject that was not covered from theoretical and practical viewpoint. By discussing the international electronic commerce arbitration body, this study provides insights for researchers, arbitrators, lawyers, judges with the emphasis given to all the English and French Arbitration Act along with the rules and regulations of national and international arbitration institutions and chambers. Similarly, the importance of this issue lies in the importance of arbitration as an alternative means to litigation to settle disputes. When the role of the arbitration board arises from the agreement of the parties to the arbitration dispute and from what is stated in the arbitration contract or arbitration document in the rules that obliges the parties to the arbitration to sign an arbitration document at the beginning of the proceedings. Therefore, proceedings begin because a party to the arbitration dispute expressed its desire to settle the dispute by arbitration, i.e. from the time of the request for arbitration until the award is issued in its final form.

Legal validity of Online Dispute Resolution (ODR) System in India and Indonesia

Advancement in technology brought many inevitable changes with more efficiency, making human life easier. Benefit of technology shall be incorporated for effective and efficient justice delivery in dispute resolution mechanism. New development in this area is online arbitration dispute resolutions (ODR) which have been without doubt adopted and practices by justice delivery system across the globe. But the question remains the same as whether justice delivery system is equipped to cope up in the same pace with the changes taking place in the society and technology. Are the existing laws being enough to conduct online system as an effective mechanism to settle disputes among the parties? Keeping in context the preceding query, the present research resorted tracing the laws relevant to the use of ODR mechanism in India and Indonesia, as their present legal framework of arbitration addressing dispute resolution through the ODR mechanism lack specific laws. The present research adopts a mixed method using both primary and secondary data for tracing and comparison the ODR system in India and Indonesia. It is concluded that ODR deliverance are valid and enforceable in the present legal framework of both the countries. Therefore, people must not be doubtful while using ODR mechanism to settle their disputes. It also demonstrates that an ample scope is there in the existing laws of both the countries to accommodate and enhance the overall process and deliverance of ODR mechanism through amendments and separate guidelines.

The Dispute Settlement through International Arbitration between PT. Karaha Bodas Company against PT. Pertamina and PLN

Arbitration is a dispute resolution institution that uses an adversarial approach with the result that win lose chosen as an alternative by business people. Alternative dispute resolution that is currently in demand is through arbitration because it is in line with the increase in commercial transactions in the business sector both nationally and internationally. Dispute resolution through arbitration provides benefits for the disputing parties. These advantages include the confidentiality of the disputing parties, relatively cheaper costs, a fast, efficient dispute resolution process and provide flexibility for the disputing parties. International arbitration dispute resolution has a uniqueness which adheres to the principle of final and binding (last resort and binding). An international arbitral award that has been decided abroad if it is brought to Indonesia, there are two possibilities, i.e. the International arbitral award asks to be enforced or annulled. Based on the dispute between PT. Pertamina against Karaha Bodas Company that Pertamina cannot cancel the arbitration award that has been handed down by the Swiss Arbitration Board. The reasons for rejection and cancellation are as stated in the New York Convention and the UNCITRAL Model Law.

Provider Charges And State Surprise Billing Laws: Evidence From New York And California.

Surprise billing laws that allow dispute arbitration relying on provider charges may incentivize out-of-network providers to increase their charges to increase upcoming or future out-of-network payments. Although the federal No Surprises Act forbids arbitrators from considering charges during payment disputes over surprise bills covered by the act, states with existing laws can continue to use the specified state laws, which may allow the consideration of charges. This analysis examined provider charges in two such states, using claims data to compare trends in billed charges for out-of-network care during surprise bill scenarios involving nonemergency inpatient hospitalizations. The analysis considered New York, where state law uses arbitration tied to charges; California, where state law uses a payment standard rather than charges; and a comparison group of states without a law regarding surprise billing. We estimated that provider out-of-network charges for the nonemergency out-of-network bills we studied increased by $1,157 (24percent) in New York after the passage of New York's surprise billing law and decreased by $752 (25percent) in California compared to states without surprise billing laws. Assistant surgeons and surgical assistants had a large increase in charges in New York from before to after the law's passage, which may have driven the overall increase in charges.

Legal prerequisites for consideration and settlement of disputes in international commercial arbitration

The article examines the problematic issues of the grounds for litigation in international commercial arbitration. The urgency of this topic is due to the need for a lack of clear definition of the prerequisites for resolving disputes, as well as the procedure for their use in the practice of international commercial arbitration. In addition, the problematic aspects of dispute resolution in international commercial arbitration are analyzed and procedural measures for their resolution are identified.&#x0D; To achieve this goal, the material preconditions for dispute resolution in the ICA were studied and the procedure for resolving disputes was determined. The preconditions for transferring a dispute to international commercial arbitration, which are the advantages of arbitration compared to state courts, are, first of all, that it provides a more acceptable, accessible and simpler procedure for resolving disputes compared to state courts. In other words, it is a procedure established by the parties to the dispute, which in general can be adequate and adapted to make agreed decisions. Even when the parties turn to a permanent commercial arbitration, which has its own rules of procedure, they can provide for arbitration. The UNCITRAL Arbitration Rules of 2010 stipulate that when the parties decide to submit disputes to arbitration in accordance with these Rules, they shall be considered in accordance with these Rules.&#x0D; The study identified a number of major risks and difficulties faced by the party in applying to a state court: ignorance of the procedure required for a foreign state court; the obligation to conduct the proceedings in the language of the court’s location; the existence of several instances and the procedural formalism that occurs when applying to the general courts; judges do not always have the appropriate competence to deal with disputes arising from foreign trade; gathering evidence and evaluating it on the basis of the national legal system.&#x0D; The study concluded that the benefits of international commercial arbitration, in the presence of prerequisites for litigation, give much better benefits for litigation, which forms its authority among the relevant categories of legal entities and individual entrepreneurs.

Arbitration Laws and Judicial Response to Settling the Disputes Through Arbitration in Nepal

The article aims to analyze the arbitration-related laws in Nepal, the domestication of international arbitration treaties and conventions, settlement procedures of arbitration disputes and the role of the Nepalese judiciary to settle the disputes through arbitration. To settle disputes outside the court through a mutual agreement in a peaceful situation, ADR (Alternative Dispute Resolution) is the best method practiced worldwide since time immemorial; Nepal has also proclaimed various provisions in different statutes and rules. Arbitration Act, 2055 is the current statute that governs arbitration matters and Arbitration (Court procedures) Rule, 2059 governs the court proceedings. The various provisions of Arbitration Laws and Rules have been proclaimed to mitigate the international arbitration laws and rules. Nepalese judiciary especially the supreme court and high court has played a pivotal role to settle the dispute that arose during arbitration, arbitral award, its implementation, the appointment of arbitrator etc. The finding of the study is there have been significant changes in the decision-making process by the court and new trends mitigating the international proceedings have been followed. The analysis is significant as it helps to understand the arbitration laws and procedures and new trends adopted by the courts to settle disputes.

Jurisdictional and Non-jurisdictional Forms of Patent Rights Protection: Russian and Foreign Experience

The features of patent disputes determine the variety of mechanisms for their consideration and resolution. A review of the Russian and foreign experiences (Germany, Norway, United States, France, Sweden, Japan) show the applicability of various forms of patent rights protection, including administrative and judicial.&#x0D; Administrative bodies that protect patent rights generally include divisions of patent offices and other executive authorities.&#x0D; In the judicial systems of the states under review, special judicial structures function in the nature of courts with general competence to consider civil cases, while specialized courts for the protection of intellectual property rights including patents have been created.&#x0D; The authors conclude that in the modern period, the arbitration and mediation of patent disputes are becoming increasingly widespread, offering a number of advantages, including confidentiality of the case and the necessary level of specialization of arbitrators (mediators). At the same time, however, it is hindered by the lack of uniformity in resolving the issue of the arbitrability of patent disputes.

Application of forms of alternative dispute resolution in Ukraine

Resolving legal conflicts is one of the main tasks of any state. This function is in most cases entrusted to the judiciary, but as experience shows, the court alone cannot ensure the effective functioning of the legal dispute resolution system. For every democratic state, the availability of an alternative is important, and the subject of law must be able to choose the ways of resolving legal disputes. Today in the world there are such alternative ways of resolving disputes as: arbitration, mediation, consultation, negotiations, intersession, conciliation procedure and others. The purpose of the article is to identify the advantages and disadvantages of alternative dispute resolution methods. The article analyzes the literature on this topic, and also presents the features of alternative ways of dispute resolution, which allows us to identify their advantages and disadvantages as a legal procedure. The existence in most countries of the world of alternative dispute resolution is to some extent positive for the parties to the conflict, because dispute resolution through arbitration, mediation, negotiation, consultation and other alternative dispute resolution allows to resolve it without state intervention and they can be solved much faster. Alternative dispute resolution can to some extent be a source of savings money for the state, as they exist independently and do not require funds to provide them from the state, while in Ukraine the system of commercial courts annually requires a fairly large cost of maintaining such courts

Certain Issues of Concluding an Arbitration Agreement on Disputes with a Foreign Element

The article examines the current state of legislative regulation of the issues of concluding an arbitration agreement. Scientific approaches to the concept of an arbitration agreement are analyzed, a comparative analysis of the definition of this concept in international documents, in particular, the UNCITRAL Model Law on International Commercial Arbitration and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, as well as the consolidation of the corresponding concept in the norms of domestic legislation On this basis, the author's definition of the concept of an arbitration agreement is proposed.&#x0D; The authors analyze approaches to the classification of arbitrage transactions. It is noted that the classification fixed by the legislation into two types - an arbitration agreement and an arbitration clause - has received the greatest application in the practical plane. It is indicated that from a practical point of view, the arbitration agreement is more adapted to a specific dispute, since the procedural aspects in it are more defined. However, an arbitration clause is a more common type of transaction because it is included in the contract before the dispute arises between the parties. In this regard, it is easier for the parties to reach a compromise on arbitration issues. Doctrinal approaches to the classification of arbitration agreements are also explored.&#x0D; Regarding the content of the agreement, the authors point out that despite the position set out in the legislation on maximum assistance to the parties in exercising their right to submit a dispute to arbitration, an exact indication of the name of the arbitration institution to which the dispute is submitted is necessary. This is one of the important conditions for recognizing the arbitration agreement as feasible, creating conditions for further legitimate arbitration consideration of the dispute and the proper execution of the arbitral award.&#x0D; Concerning the issue of arbitrability of disputes, the authors indicate that today this concept has not found normative consolidation. It is positive that the list of disputes that cannot be referred to arbitration by the norms of the Economic Procedural Code of Ukraine is fixed. At the same time, the inexhaustibility of this list creates conditions for a certain legal uncertainty. The authors express an opinion on the need for further improvement of the legislation in terms of determining the range of non-arbitrable disputes.

Online Arbitration of E-commerce Disputes in the People’s Republic of China: Due Process Concerns

Online Arbitration of E-commerce Disputes in the People’s Republic of China: Due Process Concerns

LONDRA’DA DENİZ TİCARETİ TAHKİMİNE İLİŞKİN GENEL BİR DEĞERLENDİRME

Due to some reasons such as the need for secrecy, the protection of reputation, the fact that the disputes are resolved quickly and by experts in the field, arbitration has become the most popular method to be used in maritime disputes across the world. In practice, it seems that in many international commercial agreements, the arbitration venue is provided as London, and the law to be applied to the arbitration is English law. Within this scope, around the world, rather than arbitration institutions like ICC, especially LMAA with its ad hoc arbitration process is considered to be the most applied association. Consisting of many expert arbitrators in maritime disputes, LMAA has updated its arbitration rules of three sets along with its independent rules-FALCA Rules. Moreover, before the arbitration process begins, it is possible for parties to a dispute to sign an agreement voluntarily with an evaluator in order to obtain an early neutral evaluation. As being a form of an alternative dispute resolution method, in this process, parties apply to the evaluator for his objective and realistic opinion. However, in case that the dispute cannot be solved at any stage until arbitration, in this study, the LMAA Terms to be applied and the procedure regulated in these Terms should be examined and some matters regarding arbitral tribunals and legal remedies against tribunal awards should be discussed.

Why Due Regard Is More Appropriate than Proportionality Testing in International Investment Law

Abstract Global regulatory standards of due diligence, regulatory coherence, and due regard are emerging in public international law. Investment law has been concerned to settle upon the most appropriate regulatory coherence tests for application in the arbitration of regulatory disputes. Candidates have included proportionality, rationality, and reasonableness tests. This article argues instead for reliance on the due regard standard in conjunction with reasonableness or rationality testing. This will more appropriately reflect the nature of investment treaties as inter-State bargains. Further, responding to arguments for the adoption of proportionality on the basis of comparative public law, the article demonstrates that proportionality is not established as a general head of review in common law jurisdictions including England, Australia, Canada, New Zealand and South Africa. At the same time, the application of the due regard standard can have much in common with procedural proportionality testing as seen among these domestic legal systems and elsewhere.

Use of Arbitration in the Settlement of Intellectual Property Disputes in Nigeria

Intellectual Property (IP) protects exclusive ownership, use and/or exploitation of IP rights. The infringement of the said rights give rise to disputes which can be settled by Arbitration. Arbitration is an Alternative Dispute Resolution (ADR) Mechanism, which can be used in the settlement of Intellectual Property (IP) disputes by the agreement of the parties. This method of settling IP disputes is cheaper, faster, more confidential and encourages party autonomy than litigation. Pima facie, IP disputes are arbitrable, though in Nigeria there is no specific law on arbitrability of IP disputes, but there are instances or provisions within the Trademarks Act and Federal High Court Act which permit the deployment of Arbitration to such disputes. WIPO Arbitration and Mediation Centre has settled several mediation and arbitration disputes. The confidential nature of arbitral proceeding has made it particularly advantageous for settling IP cases owing to the delicate nature of the information and documents involved.