Arbitration Research Articles

How to assess the res judicata effects of international arbitral awards: giving concreteness to an autonomous approach

Abstract The article seeks to demonstrate the inadequacy of the ‘conflict-of-laws’ approach to determine the res judicata effects of international arbitral awards. Demystifying the erroneous assumption that the rules on the scope of res judicata are per se a matter of public policy, the authors defend an ‘autonomous’ approach, which dispenses with domestic law and confers broad preclusive effects on awards, with a view to avoiding the re-litigation of a dispute that is, in essence, the same as one already decided by a prior award. The legal bases for such an approach are party autonomy and the inherent powers of arbitrators. Building on the ILA Recommendations and recording the evolution of the conception of res judicata in certain civil law jurisdictions, the article proposes the elements of an arbitration-specific notion of the subject matter scope of the res judicata of awards with respect to issues of substantive law, addressing the situation of the res judicata of an award relied upon in further arbitral proceedings. The authors urge soft-law-making bodies and arbitral institutions to tackle arbitral res judicata proactively and contribute to the development of rules to give secure guidance to arbitrators and courts in determining its proper contours.

Confidentiality and privacy of arbitration in the digital era: pies in the sky?

Abstract Confidentiality and privacy are essential components of arbitration, preceding the digital data era. This article discusses how arbitration stakeholders—arbitration institutions and associations, arbitrators, attorneys, and commercial users—have increasingly lost control over confidentiality and privacy in international commercial arbitration by adopting digital technologies provided by Internet giants, such as Microsoft, Google, Dropbox, and Zoom. Arbitration institutions and users have, often unconsciously, defined confidentiality and privacy expansively to promote the wider use of email, cloud storage, and video conferencing platforms in conducting arbitration proceedings. However, they have overlooked the extent to which the use of digital technologies exposes private and confidential information to third parties, including but not limited to Big Data. They have also placed undue faith in the capacity of Internet giants that dominate the Internet to protect highly sensitive arbitration proceedings which those giants commercialize to garner public attention including in arbitration disputes. In responding to this troubling reality, the article examines how to better protect confidentiality and privacy in arbitration, by refining existing protections embodied in international rules and guidelines and choosing domestic forums that favour such protections. It also encourages arbitration stakeholders to update the rules and their application to arbitral proceedings to respond to both intended and unintended violations of commercial and personal data. That strategy includes redressing the downstream disclosure of injurious data, including by choosing legal forums that protect against the use of intelligence to violate private and confidential data.

К вопросу о праве дачи заключения по делу органом власти в арбитражном процессе

The conclusion of the authority in the arbitration process is a new institution of arbitration procedural law. The possibility of giving an opinion by an authority in the arbitration process is based on the legal position of the Supreme Court of the Russian Federation. The author examines the institution of opinions through a number of identified inconsistencies, signaling that the issuance of an opinion should be established as a general rule in the arbitration process. This is a discrepancy in the line of correlation with special norms that allow the authority to give an opinion on the case (against the background of the absence of a general norm, the authority gives an opinion in the arbitration process only in cases involving a foreign state); a discrepancy in the line of correlation with the powers of other entities occupying a similar procedural position (the right to give an opinion in the arbitration process was vested with the prosecutor); inconsistency in the line of correlation with the model of regulation of similar relations (giving an opinion is provided for in civil proceedings and in administrative proceedings); inconsistency in the line of completeness of the competence of the authority itself (the authority can initiate the process, but it cannot enter into it to give an opinion); inconsistency in the line of interchangeable forms of participation in the case of bodies used in practice the authorities (the inability to give an opinion entails the involvement of authorities as third parties without independent claims on the subject of the dispute).

Третьи лица, не заявляющие самостоятельных требований относительно предмета спора по делам об установлении факта, имеющего юридическое значение в арбитражном процессе

Procedure of the Saratov State Law Academy, Legal Practitioner In this article, despite the impossibility of embracing the immensity, several institutions of civil procedural law are identified, which have their own characteristic questionable features of unresolved (we will clarify as we increase): third parties without claims regarding the subject matter of the dispute, special proceedings, arbitration proceedings. The importance of the role of third parties in justice has been given over a different number of times, the practical orientation of resolving indisputable cases puzzles persons in their procedural position of the arbitration court — the applicant and interested persons, or interested entities together with the applicant with the involvement of third parties without claims in the case.

التحكيم الالكتروني الدولي ومدى كفاية قواعد الاسناد في القانون المدني العراقي لتحديد القانون الواجب التطبيق على موضوعه وسير إجراءاته

The electronic arbitration is applied by the agreement of the arbitration parties to submit their disputes arising from contracts concluded by electronic means to a third party to decide them according to based on the parties' agreement, by modern communicating means and electronic technologies different from traditional means used in traditional arbitration. The electronic arbitration will be international, if the legal relation which is the subject-matter of the arbitration, is a legal relation interspersed with a foreign element. Or a special international contractual relation. It is worth-bearing in mind that although Iraq did not issue an international electronic arbitration law, but this study tried hard to determine the applicable law to both the procedures and the subject of the international electronic arbitration in conformity with the legal provisions available in the Iraqi law. We tried hard, in order to perform this legal institutionalization, to resort to some texts of the Iraqi Civil Law No. (40) of 1951, the law of civil procedures No. (83) of 1969, and the law of the electronic signature and electronic bargains No. 78 of 2012.

Swiss Contract Law in International Commercial Arbitration by Christoph Müller with Sabrina Pearson-Wenger

Swiss Contract Law in International Commercial Arbitration by Christoph Müller with Sabrina Pearson-Wenger

CONTOURS OF JURISDICTION UNDER INDIAN ARBITRATION ACT

The Arbitration Act, 1940 had no provision which allowed the Arbitral Tribunal to make a decision on its own jurisdiction like Section 16 of the Arbitration and Conciliation Act, 1996 the Arbitral Tribunal has been granted the power to make a ruling on its own jurisdiction. Section 16 (1) of the Arbitration and Conciliation Act states that the Arbitral Tribunal may rule on its own jurisdiction, including ruling on any objection with respect to the existence or validity of the arbitration agreement. The legislative intent underlying the 1996 Act is to minimise judicial intervention in the arbitral process and nominate the arbitrator without wasting time, leaving all contentious issues to be decided by the arbitral tribunal itself Section 16 of the Arbitration and Conciliation Act incorporates the principle of "Compétence-Compétence" or "Compétence de la recognized", is a doctrine that empowers an arbitral tribunal to rule on its own jurisdiction, including ruling on any objection with respect to the existence or validity of the arbitration agreement. It is closely related to rules regarding the allocation of jurisdictional competence between arbitral tribunals and national Courts and to rules concerning the nature and timing of judicial consideration of challenges to an arbitral tribunal’s jurisdiction. The doctrine empowers the arbitrators to decide on their own jurisdiction. The ruling passed in SBP & Co. vs. Patel Engineering Ltd. chipped away the importance of the Kompetenze-Kompetenze principle incorporated in Section 16 consequently, the 2015 Amendment inserted Section 11(6A) in order to restrict the powers of the courts to merely examining the existing of an arbitration agreement. The 2019 Amendment omitted Section 11(6A). now after coming of so many decisions regarding this matter the scope and area of jurisdiction of arbitral tribunal has opened many wings of debate and this chapter is an attempt to discuss all these dimensions

The Arbitration Law in Brazil and the need to update

Arbitration is the oldest institute used by society as a means of resolving conflicts. In Brazilian law, arbitration has already been provided for in Philippine Ordinances since the period of colonization. Despite being provided for in legal standards, arbitration only underwent significant regulation in 1996 with the publication of Law nº 9.307/1996, which represented a major advance at that time. However, new improvements occurred with the sanction of Law nº 13.129/2015, which implemented, among other improvements, the use of arbitration in direct and indirect public administration. The changes to the aforementioned law brought great advances, expanding its applicability to various activities or matters, which provided Brazilian society with more options for quickly resolving conflicts. In this context, through bibliographical and documentary research, the objective of this paper is to present the main bills that expand the use of arbitration, and thus demonstrate the need to update Brazilian arbitration law, which could become one of the most modern of the world. The bills in progress expand the use of the arbitration institute to the most diverse activities, from private law to public law, including conflicts related to family law, consumer law and tax relations. Therefore, the approval of these projects by the National Congress is urgent, as Brazilian society needs alternative means to resolve the most varied controversies.

Artificial Intelligence and Foreign Investment Law Arbitration: an Analysis of Regulatory Framework Implications

Abstract This paper proposes a structured, tiered framework through a UNCITRAL Model Law to gradually integrate artificial intelligence (AI) into foreign investment law arbitration in an ethical and effective manner. It also explores the critical role arbitration institutions can play in facilitating AI implementation. It details how AI can assist arbitrators by searching vast datasets, automating routine tasks, and enhancing decision-making through analysis of previous cases. Current AI regulations in regions like the EU, UK, and Canada fall short in addressing the complexities of cross-border arbitration and ensuring interoperability. By emphasising the distinct contributions of the proposed UNCITRAL Model Law and arbitration institutions, the paper highlights a multi-faceted strategy to overcome challenges posed by outdated international conventions, inconsistencies in bilateral investment treaties, and the lack of comprehensive guidance. This approach aims to refine the integration of AI in arbitration processes, enhancing efficiency, fairness, and the legitimacy of the arbitration system.

Участие публично-правовых образований в цивилистическом процессе: актуальные проблемы

The article examines the procedural aspects of the participation of the state, its subjects and municipalities, state authorities and local governments, officials as a party in civil and arbitration proceedings. It is shown that in a number of cases public legal entities exercise power within the framework of private law relations. At the same time, the civil procedural and arbitration procedural forms do not contain special rules for the consideration of disputes with their participation as a party to the case or a third party. The forms of participation of public entities in civil and arbitration proceedings are differentiated based on the nature of their interest in the case.

The 2022 ICSID Arbitration Rules: Modernizing International Investment Dispute Resolution

Abstract The new Arbitration Rules of the International Center for Settlement of Investment Disputes (ICSID), which came into force on July 1, 2022, replace the previous version in force since 2006. These rules seek to make the ICSID arbitration process more efficient and responsive, while maintaining the high standards that have made ICSID a respected forum for resolving investment disputes. The new rules reflect changes in international investment law and policy over the past decade, and also aim to address shortcomings of the previous system, such as lack of transparency and efficiency. New provisions have been introduced to simplify and speed up arbitration procedures, provide greater transparency, increase the legitimacy of arbitration processes and expand access to them. The new rules reflect the expectations of ICSID and its members for more efficient and transparent resolution of investment disputes and should facilitate the further growth of international investment and trade, as well as the resolution of disputes arising in connection with these processes.

Arbitration Bases for Settling Commercial Disputes in Accordance with The Provisions of The Code of Judgments (JUSTICE) Comparative Study International Trade Law (UNCITRAL) In Light of The Emirati Arbitration Law

Arbitration Bases for Settling Commercial Disputes in Accordance with The Provisions of The Code of Judgments (JUSTICE) Comparative Study International Trade Law (UNCITRAL) In Light of The Emirati Arbitration Law

Контроль за решениями и действиями органов исполнительной власти в арбитражном судопроизводстве

Analyzes the role of arbitration courts in regulating relations between the executive branch and business entities. The review covers the current problems faced by entrepreneurs when defending their rights in arbitration proceedings, and suggests ways to improve the existing system. Attention is focused on the need to adapt legislation and judicial practice to new economic and technological conditions. The importance of alternative dispute resolution methods, such as mediation, to reduce the burden on the judicial system. The need to optimize the procedure of consideration of court cases is emphasized, including by improving the qualifications of judges and developing new methodological approaches to their resolution.

Authentication and verification in arbitration proceedings

The extensive and intensive development of digital technologies is a constant process that co-occurs with the same steady increase in the level of social significance of the justice process. One of the cornerstones in integrating individual technological solutions into the justice administration ecosystem is the development of technologies that can carry out many procedures remotely. These problems indicate a real need to develop a comprehensive scientific understanding of verification and authentication. This study aims to analyze the concepts of verification and authentication in the context of modern arbitration proceedings in Russia and define issues arising from the digitalization of procedural relations. The authors concluded on the possibility of convergence of arbitration institutions and state courts, the creation of a unified information system aimed at increasing the accessibility of arbitration proceedings, which correlates with the reduction of judicial workload in state courts, as well as the prospects of integration of authentication and verification mechanisms in arbitration proceedings.

The development of arbitration proceedings in Russia

The article reviews the general development of arbitration proceedings in the Russian Federation. The paper’s main aim is to review the general development of arbitration proceedings in the Russian Federation. Using the legal comparative method allowed us to study national and foreign legislation to formulate conclusions about developing the arbitration procedure in Russian legislation. The application of the formal legal analysis made it possible to understand the concept of the arbitration court from a Russian perspective. A brief historical excursion of the development of arbitration proceedings, starting from the twelfth century, was made to achieve the paper’s aim. Following that, the author delves into the 2016 arbitration reform, its significance and the current state of arbitration in Russia. The author briefly describes and analyzes permanent arbitration institutions operating in the Russian Federation. At the end of the article, the author discusses the current trends in the development of arbitration and the challenges facing arbitration proceedings in Russia.

Current Tasks and Issues of Judicial Financial and Economic Examination in Bankruptcy Cases in Criminal and Arbitration Proceedings

The author examines current issues of the appointment and production of judicial financial and economic examinations in bankruptcy cases. The article provides statistics on the consideration of bankruptcy cases in the Russian Federation, considers data on the initiation of criminal cases, appeals to the court to declare the debtor bankrupt, as well as other cases (challenging transactions in bankruptcy, bringing persons controlling the debtor to subsidiary liability). The conceptual apparatus of the judicial financial and economic examination in bankruptcy cases is considered, the goals are defined, the concepts of the task of the judicial financial and economic examination in bankruptcy cases are revealed, a list of questions is developed and justified for each specific task. The general tasks of forensic economic examinations are defined, as well as typical tasks related to financial and economic examination in bankruptcy cases. A list of questions for the following expert tasks has been developed and justified: study of the financial condition of the organization, study of the solvency and financial stability of the organization and the impact of individual operations on it, study of the organization and the impact of individual operations on it, identifying the presence (absence) of signs of deliberate and fictitious bankruptcy, identifying the presence (absence of) signs of deliberate and fictitious bankruptcy of the organization. The article discusses issues of competence of an expert in bankruptcy cases, distinguishes between issues of forensic accounting and financial and economic examination in bankruptcy cases. Recommendations for formulating questions before an expert economist in bankruptcy cases have been systematized. Typical errors in formulating questions to an expert are considered, and the inadmissibility of raising legal questions to an expert, as well as questions related to the assessment of the actions of officials, is noted.

An evaluation of third-party funding in commercial arbitration

Arbitration as a dispute resolution mechanism aims to advance access to justice in accordance with Goal 16 of the United Nations Substantiable Development Goals (SDGs). One key issue in arbitration law and practice is the role of third-party funders in fundraising for the arbitration or even litigation process. Third Party Funding (TPF) has grown as a practice of financial responsibility for litigation or arbitration by sponsors that are not parties to a dispute, but whose interest is return for their investment. Such an arrangement may cover major litigation or arbitration costs, as well as other miscellaneous costs. The practice contradicts well established legal principles such as privity of contract and/or complements party autonomy, but the enormous advantages it offers, such as faster access to justice and investment opportunities cannot be ignored. Whilst the concept has developed in advanced countries it is yet to take shape in developing nations like Nigeria. The methodology deployed is doctrinal with primary and secondary sources being the content of Statutes, Bills and Case law. Online sources were also relied upon for secondary sources. The study found that TPF will assist in higher fundraising for litigation and arbitration, that it applies mainly to claimants and will increase access to justice. It is recommended that funds be made available to Defendants too and that developing countries should embrace the practice.

Annulment of The Arbitration Decision Accordin to The Legislation and Practice

Objective: The study of the work has a comprehensive approach, based on current legislation and practice. Based on the fact that the arbitration procedure is an alternative procedure for the resolution of disputes, it is quite demanded, and that there are deficiencies in the literature as well as in the knowledge of the subjects of the law. Thus, when it came to the decisions made in the arbitration procedure, we say that they have the same legal force as the decisions made by the regular courts of the state, and also the annulment of the decision requires special clarification, since there are cases that the decision made in the arbitration proceedings are required to be set aside as the reason that the agreement to arbitrate is void. Thus, the purpose of this paper is to clarify in short points that it is possible to annul an arbitration decision in the event that the arbitration agreement was invalid. Method: The work is formulated on the basis of appropriate scientific methods. The methods that are included in the paper are scientific methods, historical methods, comparative methods, deduction methods, induction methods, and other methods without which the paper could not be formulated! Result: The decision made in the arbitration procedure must be made in accordance with the law on arbitration as well as with the principles defined in the law on arbitration, whether domestic or international. If it is found that the arbitration decision is illegal, or not based on evidence, then the same can be annulled. This annulment can be done by the regular state courts, but always in case the party that has a legal interest addresses the court and requests the annulment of the arbitration decision because it is contrary to the law on arbitration or contrary to the agreement on arbitration. or other reasons which the parties may present in the action for annulment of the arbitration award. We will talk more about the annulment of the arbitration decision in the content of this paper. Conclusion: As a conclusion of the paper, in the general sense of this paper, I have mentioned that the parties during the terms of the agreement must be careful not to conflict with any reason that leads to the invalidity of the arbitration agreement, since this invalidity will have consequences in in the event that an arbitration award has been given by this agreement, as from the regular courts this award will be annulled because the arbitration agreement has been invalid since the beginning of the criminal offense of this agreement or may become invalid and with the passage of time. So, during any action taken by the parties who claim to resolve their dispute through arbitration, they should be careful that everything is in order with the arbitration agreement, as the invalidity of the agreement may lead to the annulment of the award. of arbitration and this would be to the detriment of the party.

Особенности рассмотрения запроса третейского суда о содействии в получении доказательств

International Commercial Arbitration is subject of Article 27, Law of the Russian Federation No. 5338‑1, July 07, 1993, while Arbitration Proceedings in the Russian Federation are described in Article 30, Federal Law No. 382-FZ of December 29, 2015. If a dispute settlement goes to institutional arbitration, a party or an arbitration court has the right to apply to a competent court with a subpoena of evidence. This article features the publication and execution of subpoena of evidence by arbitration court for the recovery of evidence. This category differs from other arbitration proceedings in that it requires a procedural appeal that initiates the proceedings, i.e., the subpoena of the arbitration court, and an applicant, i.e., the institutional arbitration court that is seeking assistance in the dispute. The author used the methods of teleological interpretation and functional analysis to justify the admissibility of normative provisions that exclude the right to issue a subpoena by ad hoc arbitrators and to send subpoena of evidence directly by the parties to the arbitration proceedings. The parties to the arbitration should be involved as interested parties. The applicant and the stakeholders have limited procedural rights and obligations since the court neither carries out jurisdictional activities nor considers the dispute per se, but coordinates assistance functions. As a result, some procedural shortcomings make it impossible to clarify the form and content of subpoena, as well as the type and content of documents that should be attached to it, e.g., an arbitration agreement, a state fee payment confirmation, a resolution on the arbitral panel, etc. The author also analyzed grounds for refusal to execute a subpoena of evidence. Excessive discretion and Delphic language should not violate the rights and legitimate interests of third parties, thus preventing them from participating in the arbitration.

Толкование категорий «публичный порядок» и «публичный элемент» в третейском разбирательстве

The article examines public order and public elements, their understanding, correlation and application in arbitration proceedings. The authors conclude that it is advisable to carefully apply the categories of public element and public order.