Arbitration Of Disputes Research Articles

“Solar” cases: could Italy’s withdrawal from the Energy Charter Treaty lead to its collapse?

The article notes that investments in solar energy have already led to a number of arbitration cases related to the subsequent change in investment incentives. The so-called Solar Cases, initiated by investors under the Energy Charter Treaty (ECT) against Kingdom Spain, Italy and the Czech Republic, focused on the question of whether states could adjust incentives (subsidies and feed-in tariffs) to the detriment of investors after these investors relied on these subsidies to make their investments. Following the results of these arbitration proceedings, the European Union in 2019 decided to revise the text of the ECT. Eight rounds of negotiations were held during 2020 and 2021, the last of which took place in November 2021. Many believe that the reform of the existing treaty has taken too long. In February 2021, France sent a letter to the European Commission on the need for a coordinated EU exit from the ECT. Against this background, Italy’s withdrawal from the ECT on January 1, 2016, as well as Russia’s withdrawal of the signature on the treaty in 2018, are actions that determine the inevitable collapse of the ECT in the very near future. This article is devoted to the study of the causes and legal consequences of these events. Since Russia’s withdrawal from the ECT has already been the subject of study by many Russian and foreign scholars, the author focused their attention on the study of Italian arbitration disputes based on the ECT provisions, as well as on the study of foreign doctrine on this issue.

On the Question of the Legality of Concluding an Arbitration Agreement with the Participation of Consumers

The paper is devoted to the analysis of the issue of arbitrability of disputes involving consumers, which does not find an unambiguous solution either in law or in judicial practice. The author examines the positions of the highest judicial instances, as well as courts of general jurisdiction and arbitration courts on this issue, which are contradictory in nature. Having conducted a systematic analysis of legislation, legal science and judicial practice, given the special legal situation of the consumer, the author concludes that it is possible to have an arbitration agreement between the consumer and a person engaged in entrepreneurial activity, subject to certain conditions, in particular, the presence of the free will of the consumer to consider the dispute in the arbitration court and the absence of infringement of his rights in arbitration proceedings in comparison with the consideration of the dispute in the state court. The question is raised about the need for the administration of this category of disputes by permanent arbitration institutions. According to the results of the scientific research, changes in the norms of the legislation of the Russian Federation regulating the relations under consideration are proposed. Thus, it is proposed to word paragraph 1 of Article 17 of the Law of the Russian Federation “On Consumer Rights Protection” as follows: “Consumer rights protection is carried out by a court or an arbitration court”. It is also proposed to supplement Article 17 of this Law with paragraph 4: “Disputes involving consumers can be submitted to an arbitration court if all guarantees provided by law for the arbitration party are met for the consumer, provided that the following conditions are met: 1) the dispute must be considered during the administration of a permanent arbitration institution; 2) the consumer must be exempt from paying the costs associated with resolving the dispute in arbitration; 3) the place of arbitration must be determined within the subject of the Russian Federation in which the consumer resides.”

Value creation and value destruction in investor-state dispute arbitration

We investigate whether investor-state arbitration under investment protection treaties is valuable to foreign investors, and whether international arbitration has effects on firm value that are like those seen in domestic litigation. An event study of abnormal returns when claims for arbitration are filed and adjudicated show that firms gain in market value both at the time they file for arbitration and when they receive an award. These gains in value generally exceed the size of the awards, indicating that success in arbitration provides the foreign investor not only monetary compensation but also non-monetary reputational effects that reduce costs of doing business abroad. Stock markets anticipate the outcomes of the arbitration process when claims are filed and when awards are announced. The effects on firm value of domestic litigation and investor-state arbitration differ, reflecting the institutional differences between the two methods of resolving disputes.

Arbitrabilidade dos litígios com empresas estatais à luz da jurisprudência do TCU e do STJ

The objective of this paper is to provide an analysis concerning some criteria adopted by Brazilian courts in matters of arbitrability of disputes involving state-owned companies. To this end, I initially examine the characteristics of the legal regime of state-owned companies. Then, the evolution of the jurisprudence of the Federal Court of Accounts and the Superior Court of Justice is examined, with the aim of identifying the main controversial issues regarding the use of arbitration by public agencies. In the last part, the article focuses on three criteria adopted by Brazilian case law to deny the arbitrability of disputes with state-owned companies: a) the distinction between state-owned companies providing public services and those exploiting economic activities; b) the discrimination between main and support activities of the state-owned companies; and c) the extension of the statutory arbitration clause to the controlling shareholder of the state-owned company. In the end, it is concluded that arbitration is an adequate and necessary instrument for the persecution of public interests that legitimizes the State’s entrepreneurship, although its consolidation still demands the overcoming of traditional dogmas of the Brazilian administrative law that are incompatible with the business ends of the state-owned companies. Arbitration; Public Administration; state-owned companies; arbitrability.

Why do Countries Knowingly Sign Ineffective Treaties? The Case of High Seas Fishing

States Parties signing and ratifying the 1982 fishing Convention and 1995 Agreement did so knowing they would be ineffective in the stated aim of efficiently managing high seas straddling and highly migratory fish stocks. It is argued that both coastal states and distant water fishing nations signed on because they gained international recognition of their 200-mile exclusive economic zones but that coastal states looked forward to concessions by distant water fishing nations on the management of straddling stocks. These concessions could include compulsory arbitration of disputes; allow prosecutions of illegal activity of foreign fishing boats in coastal state courts; withdraw shipmasters licenses if found to be overfishing; and to encourage better surveillance by costal states by requiring any fines levied by a foreign court to be transferred to the coastal state offended against. Improved collaboration between countries, better surveillance, and increased sanctions are all needed.

Immunities And Arbitration: A New Lex Specialis Regime

AbstractThe interaction between immunities and jurisdiction is complex. One lacuna is whether the international legal principle of state immunity is a rule or principle in its own right or an exception to a pre-existing jurisdiction. In the context of international arbitration disputes, this distinction is significant. States have been relying on immunity to exclude the jurisdiction of national courts to support the international arbitral process. This Article argues there is now a growing set of common and consistent practice according to which state immunity operates as a rule or principle lex specialis to a more general set of rules or principles governing the enforcement jurisdiction of national courts.

ARBITRABILITY OF IPR DISPUTES

Intellectual Property Rights disputes are increasing at a gradual rate. Similarly, the means to use arbitration as a commercial dispute resolution mechanism is also increasing. Many liberalized and globalized countries in the world have adopted a pro-arbitration approach when it comes to arbitrability of IPR disputes. However, the judgments given by the Indian courts and their stance towards arbitration of IPR disputes have remained scattered. This paper navigates through the various judicial pronouncements set forth by the courts in India and identifies the dynamic nature of the same. It also recognizes lacuna present in the legislations and precedents regarding the scope of IPR arbitrability. Given the Indian judiciary's recent pro-arbitration stance, there is a strong probability that additional lawsuits originating from IPR agreements would be resolved through arbitration.

Mekanisme Penyelesaian Sengketa Pinjam Meminjam Uang Berbasis Teknologi Informasi (Fintech Lending) Menurut Ketentuan Peraturan Perundang-Undangan di Indonesia

Technological developments cause various developments in people's lives, one of which is in terms of lending and borrowing money. Currently, information technology-based lending and borrowing services are available based on agreements. In its implementation, it is possible for the parties not to carry out things in accordance with the agreement, causing a dispute. The purpose of this research is to study further in relation to the regulation of information technology-based lending and borrowing dispute settlements based on the provisions of laws and regulations in Indonesia and how the dispute resolution mechanism is. The research method used is the normative juridical method. The results of the study show that the regulation of technology-based lending and borrowing dispute resolution is not regulated in detail in the specific regulations, namely the Financial Services Authority Regulation Number 77/PJOK.01/2016 concerning Technology-Based Money-Lending and Borrowing Services and Bank Indonesia Regulation No.19/12/ PBI/2017 concerning the Implementation of Financial Technology. So, to determine what dispute resolution mechanisms can be done, it can refer to the legal umbrella for electronic transactions, namely Law Number 11 of 2008 concerning Information and Electronic Transactions as amended by Law Number 19 of 2016 (UU ITE). According to the Information and Electronic Transactions Law, electronic transaction dispute resolution mechanisms can be resolved through civil lawsuits, arbitration and other dispute resolution institutions.

Public-Private Arbitration in Romanian Law

The article endeavors to introduce the constitutional and statutory framework for arbitration in Romania, whilst discussing the dilemmatic legislative provisions allowing for public entities to become parties in an arbitration dispute. It includes a discussion of the concept of administrative contracts in Romania and a chronological analysis of the evolution of public-private arbitration under administrative contracts. Some of the landmark Romanian public-private arbitrations under international investment treaties have held the public agenda in recent years and they shape the public debate on arbitration as fit for purpose when it comes to public contracts.

Arbitrability of IP Disputes

Arbitrability of IP Disputes

Itisaluna and Others v Iraq: The OIC Agreement Conundrum: Consent to ICSID Arbitration and the MFN Clauses Saga

In an Award dated 3 April 2020 (Itisaluna Award), the Tribunal analyzed whether the most favoured nation (MFN) clause in article 8 of the Organization of Islamic Co-operation (OIC) Agreement allows a foreign investor to import a provision permitting access to International Centre for the Settlement of Investment Disputes (ICSID) arbitration from bilateral investment treaties (BITs) concluded between Iraq and third countries. In this Award, the Tribunal dismissed the Claimants’ attempts to use the MFN clause in the OIC Agreement to import Iraq’s consent to ICSID arbitration from other BITs. The Tribunal declined jurisdiction on the ground that the OIC Agreement does not establish clear consent to ICSID arbitration. The Tribunal majority’s approach was subject to a dissent by arbitrator Peter, who was of the view that the Tribunal had jurisdiction on the ground that the general consent to arbitration in article 17 of the OIC Agreement could extend to...

Правовое положение субъекта правоотношений в сфере добычи (производства), переработки, хранения, транспортировки, распределения, оборота и использования энергетических ресурсов: действующее законодательство и проблемные вопросы

Present article is devoted to the legal status of subjects of legal relations in the field of fuel and energy in the current legislation. It is an attempt to identify common legal features of business entities (other economic activities) that carry out such fundamentally different, but at the same time interrelated activities as extraction (production), processing, storage, transportation, distribution, turnover and use of energy resources. The author offers a distinction between the concepts of a subscriber and a consumer of energy resources, in connection with which they are offered a definition of a subscriber. The author also points out such a unique feature of the subjects of the fuel and energy complex as the differentiation of the legal status of the consumer of energy resources into the legal status of the consumer-a citizen and the legal status of the consumer-a legal entity, and touches on the problems of arbitrability of disputes in the fuel and energy sector.

Electronic arbitration in international private disputes

یُعد التحکیم الإلکترونی وسیلة من وسائل تسویة المنازعات المهمة لما یتمیز به من السرعة و المرونة و الیسر التی قد لا تکون موجودة لدى القضاء العادی أیا ً ولا حتى فی التحکیم العادی سواء کان داخلیا ً ام خارجیا ً فالتحکیم العادی إلى جانب الاجراءات المُطولة و التکالیف الباهضة لا یلائم السرعة التی تحتاجها التجارة فی وقتنا الحالی ، و سنحاول من خلال هذا البحث تسلیط الضوء على المنازعات الخاصة بالتحکیم الالکترونی و محاولة إیجاد الحلول لهذه المشکلة .یُعد التحکیم الإلکترونی وسیلة من وسائل تسویة المنازعات المهمة لما یتمیز به من السرعة و المرونة و الیسر التی قد لا تکون موجودة لدى القضاء العادی أیا ً ولا حتى فی التحکیم العادی سواء کان داخلیا ً ام خارجیا ً فالتحکیم العادی إلى جانب الاجراءات المُطولة و التکالیف الباهضة لا یلائم السرعة التی تحتاجها التجارة فی وقتنا الحالی ، و سنحاول من خلال هذا البحث تسلیط الضوء على المنازعات الخاصة بالتحکیم الالکترونی و محاولة إیجاد الحلول لهذه المشکلة .

Commercial Business Dispute Settlement Through Online Non-Litigation Dispute Settlement in Indonesia

The purpose of the research entitled Settlement of Commercial Business Disputes through Online Non-Litigation Dispute Resolution in Indonesia is to analyze the mechanism for resolving commercial business disputes through non-litigation in the form of ODR in Indonesia and its legal consequences. The research method is in the form of normative legal research, which is a method that uses statutory regulations, which are then analyzed and drawn conclusions from general matters into a specific conclusion. The results of the research obtained are, First: that the legal basis that contains and states implicitly regarding matters relating to ODR is contained in Law Number 30 of 1999 concerning Arbitration and Alternative Dispute Resolution, namely, the contents of the legal regulations also do not provide much clarity. Details on how the conditions for ODR are carried out, the ODR mechanism, and other explanations. Second, the Inconsistency Norm that occurs in regulations relating to dispute resolution through non-litigation ODR, namely between several articles in the AAPS Law, there is a discrepancy or contradiction between the rules or articles that apply, so that the legal rules become vague and unclear. Where according to several articles of the AAPS Law it is stated that the Arbitration dispute resolution process must be written, while according to other articles of the AAPS Law it can be online. There is a legal ambiguity in the non-litigation dispute resolution mechanism through ODR, so that the parties feel that there are no clear directions or instructions in resolving cases, this makes the process of non-litigation dispute resolution mechanisms through ODR not well directed, due to disharmony or inconsistency the rule of law, so that the rule of law becomes vague, vague and unclear. The solution to these legal issues is that the government should make legal regulations that specifically regulate ODR or revise Law Number 30 of 1999 and add articles related to ODR. To the Government to provide websites and institutions that can specifically handle non-litigation dispute resolution through ODR to handle commercial business dispute resolution.

COMMERCIAL BUSINESS DISPUTE SETTLEMENT THROUGH ONLINE NON-LITIGATION DISPUTE SETTLEMENT IN INDONESIA

The purpose of the research entitled Settlement of Commercial Business Disputes through Online Non-Litigation Dispute Resolution in Indonesia is to analyze the mechanism for resolving commercial business disputes through nonlitigation in the form of ODR in Indonesia and its legal consequences. The research method is in the form of normative legal research, which is a method that uses statutory regulations, which are then analyzed and drawn conclusions from general matters into a specific conclusion. The results of the research obtained are, First: that the legal basis that contains and states implicitly regarding matters relating to ODR is contained in Law Number 30 of 1999 concerning Arbitration and Alternative Dispute Resolution, namely, the contents of the legal regulations also do not provide much clarity. Details on how the conditions for ODR are carried out, the ODR mechanism, and other explanations. Second, the Inconsistency Norm that occurs in regulations relating to dispute resolution through non-litigation ODR, namely between several articles in the AAPS Law, there is a discrepancy or contradiction between the rules or articles that apply, so that the legal rules become vague and unclear. Where according to several articles of the AAPS Law it is stated that the Arbitration dispute resolution process must be written, while according to other articles of the AAPS Law it can be online. There is a legal ambiguity in the nonlitigation dispute resolution mechanism through ODR, so that the parties feel that there are no clear directions or instructions in resolving cases, this makes the process of non-litigation dispute resolution mechanisms through ODR not well directed, due to disharmony or inconsistency the rule of law, so that the rule of law becomes vague, vague and unclear. The solution to these legal issues is that the government should make legal regulations that specifically regulate ODR or revise Law Number 30 of 1999 and add articles related to ODR. To the Government to provide websites and institutions that can specifically handle non-litigation dispute resolution through ODR to handle commercial business dispute resolution.

КОНЦЕПЦИЯ НАКОПЛЕНИЯ (КОНЦЕНТРАЦИИ) ОБЩЕСТВЕННО ЗНАЧИМЫХ ПУБЛИЧНЫХ ЭЛЕМЕНТОВ В ПРАВООТНОШЕНИИ КАК ОСНОВАНИЕ ДЛЯ НЕАРБИТРАБЕЛЬНОСТИ СПОРА

This article examines a relatively new phenomenon of domestic law enforcement practice – the arbitrability of disputes with a “public element”. Increasingly, the possibility of arbitration in disputes in which there is a so-called public element is being questioned. The courts do not disclose the concept of a public element. From the general understanding, it is only deduced that we are talking about public entities as participants in civil law relations, about the involvement of public property and budget financing in such relations. All the above relationships form an urgent problem of arbitration, which has a consequence in the form of refusal of state courts to enforce arbitral awards. This controversial judicial practice also gave rise to a controversial concept, which in the doctrine is called the concept of accumulation (concentration) of socially significant public elements. This concept raises questions from the point of view of the theoretical perception of this phenomenon: neither foreign nor domestic doctrine knew this phenomenon. Until this moment, only minor attempts were made to analyze this concept, as well as to analyze individual public elements and their impact on the legal relationship in terms of the possibility of a dispute from this legal relationship to be considered by arbitration. Bridging this gap is this article.

International Commercial Arbitration in Russia: Results of the Reform

September 2021 marks five years of the arbitration reform in Russia. During this period, fundamental changes have occurred in this area, affecting both arbitration institutions that are authorized to administer disputes on the territory of Russia, and the distribution of categories of arbitrable disputes between permanent arbitration institutions and arbitration tribunals created to resolve a specific dispute (ad hoc arbitration tribunals). The paper attempts to analyze the main results of the reform and assess its impact on Russia’s attractiveness as a place of arbitration. The author comes to the conclusion that, despite some positive consequences of the reform (such as "pocket" arbitration courts leaving the market, resolving the issue of arbitrability of corporate disputes, empowering state courts with the functions of promoting and monitoring the activities of arbitration courts, etc.) a number of problems remained unresolved, and the attitude towards Russia as a place of arbitration remainedalmost unchanged. Moreover, innovations that relate to the procedure for creating arbitration tribunals and obtaining the right to administer disputes on the territory of Russia and apply, among other things, to foreign arbitration institutions, have led to attempts to circumvent the requirements of Russian law both by the parties and by the arbitration institutions that failed to obtain appropriate permission. An equally important problem resulting from the reform includes leaving the market by regional arbitration courts that used to be popular among small and medium-sized businesses that are often not ready to pay rather high arbitration fees set by large arbitration centers. Thus, most of the goals set by the reform ideologists have not been achieved, which indicates the need for further improvement of legislation in this area.

Reforming the Legislation on the International Commercial Arbitration of Ukraine: Realities or Myths

International commercial arbitration (ICA) is an alternative way to resolve foreign economic disputes. Initially, arbitration itself was seen as a neutral court in which the parties to the dispute were independent of national courts. Arbitration agreements and decisions must be recognised by national courts without any complications or review procedures. Although granting commercial parties some independence to agree that their dispute will be considered by independent arbitrators is a key principle in ICA, the struggle for supremacy between national laws and national courts on the one hand and the autonomy of the parties and the independence of the international arbitration system on the other continue. Over the years, national laws have sought to control, regulate, interfere with, or support ICA in various ways. To counter attempts to ‘localise’ ICA and promote equality in this area, private, professional institutions and international and intergovernmental organisations have developed a significant body of law designed to ensure self-government and dispute settlement procedures in ICA. Nevertheless, international commercial arbitration cannot exist independently of national jurisdictions. Examining the activities of ICA, it can be seen that the importance and impact of national arbitration laws and national judicial supervision are significantly reduced, but the lex fori still plays an important role in arbitration. Thus, the reform of the normative regulation of international arbitration also affected Ukraine. The article analyses the radical changes proposed by the legislator regarding the procedure for establishing institutional arbitrations, expanding the arbitrability of disputes.

Who Wins in International Investment Arbitration Disputes? Evidence from Latin American and Caribbean Countries’ Cases under ICSID

During the nineties, an important group of Latin American and Caribbean (LAC) countries adhered to the International Center for Settlement of Investment Disputes (ICSID) as part of a programme of measures that sought to attract foreign investment to the region. With the aim of exploring the determinants of arbitration outcomes, I use a dataset of 161 concluded disputes until 2019 corresponding to investments in LAC countries, finding evidence on the influence of parties’ characteristics, the subject discussed in cases, and characteristics of the tribunal on the arbitration outcomes. I find that 50% of tribunal decisions have been favourable to either claimant investors or host countries. However, this result may be subject to sample bias if information of settlements and discontinued cases is not taken into consideration. I also find evidence in favour of selection and party capability theories that helps to explain the determinants of international investment arbitration dispute outcomes. In particular, the results reveal that disputes related to direct expropriations have a relatively higher probability of being considered founded by tribunals than other legal controversies. Likewise, the indicators of the relative strength of parties, such as experience in the international arbitration system, have an important influence on tribunal awards. Furthermore, country’s time of experience within ICSID is found to have an important influence on the selection of disputes.

YURIDIKSI PENGADILAN DAN ARBITRASE DALAM MEMERIKSA SUATU SENGKETA DIKAITKAN DENGAN PRINSIP COMPETENCE -COMPETENCE DAN KLAUSUL ARBITRASE

The doctrine of the principle of competence explains that arbitration which has jurisdiction in the statement itself is based on the authority to hear and decide an arbitration dispute. The authority possessed by Arbitration even though there is an arbitration clause in a belief as a way of resolving disputes arising in the agreement. The determination of the arbitration authority is related to the validity of an arbitration clause or their agreement arbitration agreement which makes the agreement in question regarding this matter
 The legal problems in this research relate to the norm vacancies regarding the competence-competence principle in Law No. 30 of 1999 concerning Arbitration and Alternative Dispute Resolution (hereinafter abbreviated as AAPS Law).Solving research problems using normative legal methods with a legal approach, cases, and analysis of legal concepts.