Arbitration Legislation Research Articles

Актуальные тенденции в законодательстве Китая о международном арбитраже

China did not adopt the UNCITRAL Model law in either version and its arbitration legislation often does not reflect the world-recognised practices of international arbitration. However, during the last few years, China has been softening its approach towards both international commercial and investment arbitration. The recent court decisions, adoption of the new Civil Procedure Law and proposal of the Draft Amended Arbitration Law signify gradual recognition of the concept of ‘seat of arbitration’ instead of relying on the domicile of the arbitration institution. Furthermore, Chinese courts have acknowledged the capacity of foreign arbitration institutions to administer disputes within mainland China — a significant shift from past practices where only Chinese arbitration commissions could administer arbitration proceedings in China under the Arbitration Law. This change is also reflected in the Draft Amended Arbitration Law. Another crucial legislative change is adoption of the Foreign State Immunity Law, which came into effect in January 2024. By enacting this law, China has shifted from absolute to restrictive immunity in disputes between a person or entity and a state. Thereby China allowed claims against foreign states arising out of commercial activities or international investment treaties to be considered in Chinese courts. Nevertheless, challenges remain in regards of recognition and enforcement of investment arbitral awards or conducting of investment arbitration in China. First, China’s reservation under the New York Convention 1958 limits recognition and enforcement of foreign awards to ‘commercial’ disputes, excluding investor-state disputes. Besides, it is discussed that China has not taken proper steps to recognise the ICSID awards as national ones for purposes of enforcement, even though it ratified the ICISD Convention. Furthermore, formally under the current Arbitration Law the investment arbitration is not possible. Finally, considering the latest legislative amendments, recent court practice and updated arbitration rules of Chinese arbitration institutions, it can be concluded that China has taken the pro-arbitration approach.

Virtual arbitration hearing: arbitrator's discretion or the right of the parties?

Today, international commercial arbitration remains one of the most effective ways to resolve disputes complicated by a foreign element. Parties to a dispute, preferring arbitration, wish to obtain the desired result in the shortest possible time. This is achieved because the parties to the arbitration proceedings themselves are endowed with an arsenal of rights that are not inherent in national courts: the right to choose a particular arbitration, the composition of the arbitral tribunal, and the law to be applied in the dispute. This is a manifestation of the "autonomy of will" of the parties to the dispute. However, despite such a broad scope of powers, some powers of the arbitral tribunal, which is chosen by the parties, cannot be limited. Although the discretionary powers of international commercial arbitration are regulated by national arbitration laws and rules, their exercise may sometimes contradict the fundamental principles and standards of effective arbitration. One of such powers is the right to determine the format of arbitration hearings, since it is by exercising this right that the arbitral tribunal may make its own decision without taking into account the views of the parties to the dispute. The article provides a comparative legal analysis of arbitration legislation, rules and law enforcement practice of national courts with regard to the possibility of determining a virtual hearing as the most efficient format for consideration of a case. Particular attention is paid to the imperfection of Ukrainian legislative regulation and the lack of a single, consistent court practice on these issues. Therefore, the conclusions propose to eliminate the shortcomings in the legal consolidation of such definitional constructs as "hearing" and "oral hearing".

On the effectiveness of digital dispute resolution through arbitration in England and Wales

The intensive growth of the digital economy has created the prerequisites for the emergence of a new mechanism of communication through the barriers of time and borders, which has affected all areas of society, including the area of dispute resolution. The emergence of completely new objects of civil rights in the metaverse requires the legislator to develop a legal basis for their functioning. The need to create special mechanisms for resolving so-called digital disputes has been overdue for a long time, and their legal nature can be completely different, both related to the active integration of information and communication technology, and not arising in the field of finance, trade, intellectual property. It is quite obvious that the main features of such social relations are that their occurrence does not depend on time and boundaries. Thus, the way to resolve digital disputes should correspond to these specific features. Foreign experience in resolving digital disputes indicates, that there is no reality in which they could be avoided. Even a well-created smart contract on the blockchain does not guarantee the absence of controversial situations. Here the problem arises of choosing an adequate way to resolve such disputes, which would meet the necessary conditions, namely, binding and enforceability, and most importantly, correspond to specific features. The global community in the field of digital dispute resolution has chosen arbitration as the basis as the most common, flexible, independent and fast way to resolve disputes. The inclusion of an arbitration clause in smart contracts and the adoption of various rules for resolving digital disputes has become widespread. However even here there are legal conflicts and gaps in the regulation of digital rights, which requires the development of a single unified approach and its implementation into national legislation. In addition, the internal regulation of the dispute resolution procedure in the blockchain also creates a number of unresolved issues. One of the most developed legal systems in the field of digital dispute resolution is traditionally England and Wales. Over the past few years, a number of by-laws have been adopted that have had a significant impact on the development of this area, as well as the reform of arbitration legislation have created all the prerequisites for creating the most favorable conditions for the parties to a digital dispute to submit the dispute to English arbitration and in accordance with the law of England and Wales.

Вопросы подведомственности споров третейскому разбирательству. Анализ законодательства балтийских государств (Латвийской Республики и Эстонской Республики)

The issues of jurisdiction of disputes between economic entities to be solved through the institution of commercial non-state arbitration and the competence of arbitration institutions to consider certain types of disputes are analyzed. As a continuation of the publication in the previous issue of the journal, the arbitration legislation and arbitration practice of the Baltic states of the former USSR, such as the Republic of Latvia and the Republic of Estonia, were researched and the activities of local arbitration institutions. There is an influence on genesis of the above states legislation of Soviet and Russian law, as well as the legal traditions of some states of the European Union, especially the countries of Western Europe and Scandinavia. The Baltic republics are characterized by formed market economy at a relatively high level. The institution of commercial arbitration, as a means of resolving economic disputes, is also quite developed and in popular in the legal and economic systems of the above states. This publication analyses the legal issues of arbitrability of disputes in legal systems of Latvia and Estonia, national and international legislation governing these issues. Conclusions have been developed about the main advantages and disadvantages of legal regulation of institution of arbitration in above states.

The Validity of Arbitration Agreements Providing for Arbitration in Mainland China Administered by Overseas Arbitration Institutions

With China increasingly opening up in relation to trade, the number of overseas arbitration institutions practicing in China’s free trade zones is expected to rise. At the same time, however, the validity of arbitration agreements remains uncertain under Chinese arbitration law, with arbitration clauses which tend to permit administration only by domestic arbitration commissions. Chinese arbitration legislation and recent cases demonstrate that this issue can be attributed to difficulties identifying a designated arbitration commission or tribunal, as well as unclear standards to determine the nationality of the arbitration award. Considering relevant decisions of Chinese courts over the past twenty years, this article concludes that the attitude of the Chinese judiciary towards arbitration by overseas arbitration institutions in China has shifted from conservative to more open. However, a number of issues, including confusion around the arbitration jurisdiction (caused by absence of a requirement to specify the arbitration institution) make this area a difficult one for practitioners. overseas arbitration institutions, the validity of arbitration agreement, free trade zone, the seat of arbitration, the New York Convention

‘This Train Still Runs’: The Railway Case that Defines Arbitration Legislation and Practice

Anyone seeking to understand 21st century arbitration law has to master the story of the most pathological case of the previous century: Société Européenne d'Etudes et d'Entreprises c/ République socialiste fédérale de Yougoslavie, usually known as SEEE v. Yugoslavia.

A proposal for international arbitration law in Namibia based on the UNCITRAL Model Law on International Commercial Arbitration

International business arbitration is not covered by Namibia's present arbitration law, the Arbitration Act 42 of 1965 (the Act). There is no explicit language in the Act that addresses foreign arbitration as the Act, solely by default, covers national or domestic arbitration. When it comes to international arbitration, the Act has many flaws. Modern commercial arbitrations are increasingly being guided by the Model Law on International Commercial Arbitration (MLICA) of UNCITRAL (the United Nations Commission on International Trade Law) or by state legislation that has been influenced by it. It is undeniable that Namibia must embrace MLICA, including the majority of the 2006 revisions of the MLICA, in order to participate in the global economic village. Furthermore, Namibia has not yet ratified the 1958-adopted New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (CREFAA), which has been hailed as the most effective treaty governing global trade. This article suggests that Namibia should implement both the MLICA and the CREFAA. If this strategy is not adopted, businesses in Namibia will be hesitant to engage in international business transactions due to the lack of legal certainty that the New York Convention and contemporary domestic arbitration legislation bring.

Seat of arbitration: problematic issues of theory and practice

The effectiveness of arbitration, as well as its attractiveness for disputing parties, depends more on the existing and developed legislative framework of the convention (ratification of numerous multilateral international legal instruments) and national arbitration legislation. It is the combination of these sources that guarantees the procedural autonomy of the arbitration, while significantly reducing the interference of national courts, In addition to the existence of mandatory and optional rules for the provision of such assistance in arbitration.
 Unfortunately, such a legal framework for the consideration of foreign economic disputes by international commercial arbitration may be too complex and even sometimes unclear and problematic. However, this ambiguity in the interpretation and understanding of the law of international commercial arbitration can be addressed by paying sufficient attention to the definitional apparatus, the assessment of the development and improvement of international and national regulationslegal acts that gradually depart from archaic approaches to the definition of regulatory law through more effective analysis.
 Thus, in this article special attention is paid to theoretical and applied problematic issues of determination of «seat of arbitration». Due to clear inconsistencies and uncertainty in the national legislation and enforcement activities of many countries regarding the place of arbitration, this leads to numerous «procedural traps» in considering applications for recognition and enforcement of the award of international commercial arbitration.
 The author pays special attention to the analysis of the legislative regulation of the place of arbitration in Ukraine. And, from the perspective of the jurisprudence of the European Court of Human Rights and the Supreme Court, conclusions are drawn regarding the corresponding contradictions in the definitional apparatus.

Enforcing international arbitral subpoenas in the United States

Abstract The jurisprudence of the United States Supreme Court coupled with restrictive domestic arbitration legislation has created gaps in the enforcement of international arbitral subpoenas in the United States. These enforcement gaps restrict access to evidence by international arbitral tribunals seated in the United States and block such access entirely for foreign-seated international arbitral tribunals. These gaps also make the United States an outlier among other major international arbitration jurisdictions and conflicts with international arbitral practice. However, the recent decision of the United States Court of Appeals for the Ninth Circuit in Day v Orrick, Herrington & Sutcliffe is a first step toward filling these enforcement gaps. This article sets out the legislative framework governing the enforcement of international arbitral subpoenas in the United States, introduces the existing gaps in such enforcement, demonstrates how these gaps fly in the face of international arbitral practice and explains how the Ninth Circuit has now filled at least some of them. If followed by other federal courts, Day v Orrick may pave the way for the enforcement of subpoenas issued by international arbitral tribunals seated both within and outside the United States, and bring the United States back in line with international arbitral practice.

Критерии допустимости снижения судом расходов на оплату услуг представителя потерпевшего: применимость межотраслевого подхода

Common to all types of domestic legal proceedings is the presence of such a variety of procedural costs as the cost of paying for the services of a representative of the injured party. At the same time, the amount of legislative regulation of these costs varies depending on the type of process: in contrast to the civil procedural and arbitration legislation, the Code of Criminal Procedure of the Russian Federation does not contain provisions that give the court the right to reduce these amounts. At the same time, only an indirect argument in favor of the court having such an opportunity are the explanations of the Supreme Court of the Russian Federation, according to which procedural costs include the expenses of the victim for the participation of a representative, confirmed by relevant documents, provided they are necessary and justified. The existence at the level of interpretation of the Supreme Court of the Russian Federation of criteria for the necessity and justification of expenses for paying for the services of a representative of the victim in the absence of a specific legislative position on the issue of whether the court has the right to reduce them generally leads to legal uncertainty and is extremely dangerous for the purposes of protecting the rights of both victims and the accused. The article provides an analysis of judicial practice on the issue of reimbursement of expenses for the representative of the victim, existing doctrinal positions, on the basis of which proposals are formulated to change the Code of Criminal Procedure of the Russian Federation and supplement the provisions of paragraph 2 of the Decree of the Plenum of the Supreme Court of the Russian Federation of December 19, 2013 no. 42 “On the practice of application by courts of legislation on procedural costs in criminal cases.

Article: Blanke on UAE Arbitration Legislation and Rules: A Multi-volume Article-by-Article Commentary, Volume 1 by Dr Gordon Blanke, Second Edition 2021, Sweet & Maxwell

Article: Blanke on UAE Arbitration Legislation and Rules: A Multi-volume Article-by-Article Commentary, Volume 1 by Dr Gordon Blanke, Second Edition 2021, Sweet & Maxwell

Turkey

Abstract As complex international commercial relations developed, the practice of arbitration became more popular around the world. In this context, arbitration practices on a local basis have been shaped accordingly. The purpose of this study is to give general information about the international and domestic legislation in Turkey in the field of arbitration. Within this context, it evaluates the rules to be applied to international and national arbitration proceedings in Turkey by taking into account the effect of UNCITRAL model law on the evolution of national arbitration legislation of Turkey.

Challenges of Nigeria as a Preferable Seat of International Commercial Arbitration

Arbitration has over the years gained prominence as a preferred method for dispute resolution especially for cross-border commercial disputes. One of the reasons is that the parties want to resolve their dispute in privacy and obtain an enforceable award as soon as possible. The choice of the arbitral seat during the negotiation of any international commercial arbitration agreement is perhaps one of the most overlooked influential aspects over the course of the arbitral procedures. The importance of a wise choice of an arbitral seat generally has two aspects, one of logistical convenience and the other is of a legal effect. For reason of the crucial legal effects of the place of arbitration, the parties have to be sure that they have chosen the best suitable jurisdiction as the seat of arbitration. The article will further analyse the concept of the seat of arbitration, its role, and importance in international commercial arbitration. It will also examine by reviewing the drawbacks of Nigeria as a preferred seat of international arbitration, particularly on the arbitration legislation and the respective judicial supervision and support in effectively conducting arbitration within the jurisdiction.

International Commercial Arbitration in Malaysia

In the recent two decades, the wave of globalisation has hit the Malaysian market. It hence contributes to the popularity of arbitration as the means to settle cross border commercial disputes. The existing literature concerned with Malaysia suggests that the recent trend in Malaysia is that arbitration has become the dominant choice of dispute resolution forum. Using qualitative and doctrinal methods, this paper seeks to analyse the regulatory framework for international commercial arbitration in Malaysia, before and after Malaysia’s accession to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (hereinafter, NYC 1958). The NYC 1958 is one of the most successful international treaties with 161 contracting States. The NYC 1958 aims to promote uniform practical procedures for the recognition and enforcement of foreign arbitral awards in its contracting States, irrespective seat of the awards. In doing so, the paper examines two significant periods of arbitration laws in Malaysia: pre and post-accession to the NYC 1958. The paper concludes that Malaysia no longer follows English arbitration legislation and instead follows international best practice by adopting the UNCITRAL Model Law on International Commercial Arbitration (hereinafter, UML) as the basis of its modern legislation, the Arbitration Act 2005. Malaysian courts are also seen to adopt a positive ‘pro-enforcement’ attitude in the application to recognise and enforce foreign arbitral awards, in promoting maximum enforcement of awards as promoted by the NYC 1958 and the UML.

Влияние Европейской конвенции на формирование производства о компенсации в арбитражном процессе: зарубежный опыт

The article examines some issues of the impact of the European Convention for the Protection of Rights and Fundamental Freedoms on the formation of compensation proceedings in the arbitration process. Foreign normative legal acts play an important role in the mechanism for protecting human and civil rights, including in the production of court proceedings on violation of the rights of citizens to consider a case within a reasonable time. In the Russian arbitration legislation today there is an extensive practice of considering cases with the use of European judicial acts. It should be noted that at the present time there is a positive practice and appeals to the European Court of Human Rights are becoming much less frequent.

Inspired by Vavilov, Made for Arbitration: Why the Appellate Standard of Review Framework Should Apply to Appeals from Arbitral Awards

Vavilov re-imagined the law of judicial review in Canada. Among its most important changes, the Court held that rights of appeal impact the standard of review a court applies on judicial review. When an issue falls within the right of appeal, the appellate standards of review will apply (correctness on questions of law and palpable and overriding error on questions of fact and mixed fact/law). This paper explores the implications of this change for the world of arbitration. It argues that where arbitration legislation provides an appeal right and the parties have not excluded appeals in their arbitration agreement, reviewing courts should give effect to the parties’ choice and apply the appellate standard of review. Put differently, parties can be assumed to understand that when they refer their matters to arbitration but provide for an appeal from the award(s), any appeal should be subject to the appellate standards of review. This conclusion is justified by one of the key principles underlying arbitration in the first place: party autonomy. The article outlines the state of the law before and after Vavilov. It then makes the argument that Vavilov’s pronouncement on the standard of review for appeals and party autonomy go hand-in-hand.

Arbitrability of Corporate Disputes: Analysis of Some Issues Arising as a Result of the Reform of the Arbitration Legislation

Arbitrability of Corporate Disputes: Analysis of Some Issues Arising as a Result of the Reform of the Arbitration Legislation

Uniformity and Diversity in the Enforcement of Arbitration Clauses in Canada

Arbitration is well established in Canada. All jurisdictions have implemented the 1958 New York Convention, the UNCITRAL Model Law on Arbitration and equivalent legislation for domestic arbitration. This generally supportive legal landscape for arbitration is often at odds with access to justice for consumers. As a result, several jurisdictions in Canada have adopted legislation to guarantee consumers’ access to local courts, including through class actions, notwithstanding the inclusion of arbitration clauses in their contracts. The constitutional division of powers in Canada entitles each province to adopt its own policy, leading to diversity across the country with regard to the enforceability of arbitration clauses in consumer contracts. In this paper, the author examines the tension between general support for arbitration and differentiated treatment of consumer arbitration in Canada. To that end, the author examines relevant legislation in several provinces (including Quebec and Ontario) as well as recent jurisprudence from the Supreme Court of Canada (Dell Computer (2007), Telus (2011) and Wellman (2019)). The 2020 decision from the Supreme Court of Canada in Uber may signal a new openness toward extending protection to other vulnerable contracting parties such as employees.

Some legal mechanism problems for economic dispute resolution in Russian Federation

The aim of the study is to analyze the current state of arbitration system in the Russian Federation and also the consequences of procedural legislation reform, which has become a trigger for transformations in the system of arbitration courts. The authors consider the creation mechanisms and some aspects of arbitration institution functioning, based on the norms of the current legislation. This review is given both in relation to permanent arbitration institutions and in relation to the courts created to consider one specific dispute. In the course of this study, the authors found that a gap in legal regulation remained after the arbitration legislation reform, since it remains possible to create ad hoc "pocket" courts instead of abolished arbitration courts at any institutions. And if initially it seemed that this problem would be solved, now it is necessary to fight against such a mechanical opportunity to get the necessary “comfortable” judges.

The Origin of Arbitration Law in South Africa

This article seeks to trace the historical origin of arbitration as it is currently practised in South Africa. The resort to alternative dispute resolution methods has existed since time immemorial. The practice of arbitration was identified in the Bible when it was practised by King Solomon. South African traditional communities practised arbitration before the arrival of Western nations in South Africa, who brought with them their norms and practices. The community entrusted the responsibility of resolving disputes amicably to the headman, the Chief or the King. The practice of traditional alternative disputes resolution was disrupted by colonialism, which introduced Roman-Dutch law and subsequently English law influences. The aim of the parties under both Roman-Dutch law and English law was to steer their disputes away from courtrooms with their rigid rules and procedures. Hence the resort to arbitration. Through the passage of time, the parties lost respect for arbitration. Judicial intervention became a necessary tool to enforce the agreement to arbitrate or the subsequent award.
 A concern was raised in some quarters regarding the South African arbitration legislation that stagnated in 1965 when it was enacted. The sophisticated legal system and the impartial and independent judiciary, provided a strong support to arbitration and its autonomy. The firm judicial support did not detract from the necessity for a complete overhaul of the arbitration prescript, which might position South Africa as the hub of commercial arbitration in Africa and globally. The enactment of the International Arbitration Act, 2017 marked a great milestone towards achieving that goal. Arbitration is embedded in the fabric of South African commercial dispute resolution.