Arbitration Practice Research Articles

The Need to Make Sense of a Practice in Investment Arbitration: A Response to Eric De Brabandere

Abstract In his article entitled ‘The (Ir)relevance of Transnational Public Policy in Investment Treaty Arbitration – A Reply to Jean-Michel Marcoux’, Eric De Brabandere argues that transnational public policy does not have any significant role to play in investment treaty arbitration, both as a matter of principle and as an avenue to address human rights violations by foreign investors. The present response suggests that a more fundamental point of disagreement between our positions relates to the role of the practice of tribunals in shaping legal norms in international investment law. Inspired by the ‘practice turn’ in the study of international law, it suggests that the relevance and the normativity of transnational public policy are constituted by the practice of tribunals. Addressing human rights violations as an integral part of transnational public policy can thus be considered as a potential evolution of this practice in investment arbitration.

Las normas sobre la práctica de la prueba: Reglas IBA, Reglas de Praga o la autonomía de la voluntad

The use of the IBA Rules on the Taking of Evidence in International Arbitration (IBA Rules) or the Rules on the Efficient Conduct of Proceedings in International Arbitration (Prague Rules) is not a common practice in national arbitration. This essay is aimed to publicize its content and to explore the possibility of its use with the current Arbitration and Mediation Law (LAM) or if it is required to propose an amendment to the Law.

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.

Theoretical and Practical Aspects of Definition and Interrelation between such Categories as Will, Declaration of Will, Interest

The paper carries out psychological and legal analysis of such categories as will, declaration of will, and interest. It is emphasized that the initially studied concepts represent the object of study for the psychological science, but they also have their expression and application in jurisprudence. The author focuses on the etymology of this concepts, along with the psychological and legal characterization of these categories. It is established that these concepts, having dualistic properties in their legal nature, express interconnected, mutually reinforcing processes. The paper presents the author's definitions of the categories under consideration based on their legal characteristics. The legal analysis of the investigated problems is carried out based on the existing normative legal acts and judicial and arbitration practice. In conclusion, the paper emphasizes that the categories that have become the subject matter of this work are not sufficiently investigated by legal science and need further scrupulous analysis.

La reconsideración ante el CIADI: un mecanismo procesal para fomentar la corrección del laudo

En los últimos años varios tribunales arbitrales del CIADI se han pronunciado sobre una posible facultad de reconsideración de las decisiones preliminares dictadas en los procedimientos que se bifurcan o trifurcan (jurisdicción, fondo y determinación de la indemnización). La práctica arbi­tral más reciente, apartándose de la línea marcada en los primeros casos, se ha inclinado por reconocer esta facultad. Las diferentes interpretaciones que han realizado estos tribunales sobre el principio de cosa juzgada y sobre los poderes inherentes que puede poseer un órgano arbitral inducen a reflexionar sobre dos cuestiones principales; primera, las implicaciones que tiene la consolidación de una facultad de reconsideración para el actual sistema de recursos previstos en la normativa CIADI; y, segunda, con carácter más general, sobre los problemas de coherencia en el seno del sistema CIADI y las relaciones entre este y el DI general.

The Status of the Testimony of the Non-Appearing Witness in International Arbitration

Abstract A problem that arises from time to time in international arbitration proceedings is how an arbitral tribunal is to deal with the evidence of a non-appearing witness. The applicable rules of arbitration typically confirm that the tribunal has the authority to determine (e.g.) the “admissibility, relevance, materiality and weight of the evidence offered,” but they rarely go any further than this. The purpose of this article is to seek to provide guidance to tribunals by reviewing the available arbitral practice. This reveals that there are circumstances in which tribunals have adopted broadly consistent approaches to the status of the non-appearing witness's written testimony (although this does not appear to extend to the treatment of a non-appearing expert's evidence), and that tribunals have generally not distinguished between the existence of a valid reason for a witness's failure to appear, or of exceptional circumstances which would warrant the witness's evidence being admitted. In addition, tribunals appear to be reluctant to place much weight on a non-appearing witness's written evidence unless it is corroborated by the testimony of other witnesses or documentary evidence, and they are also reluctant to draw adverse inferences from a witness's non-appearance.

Working Twice as Hard to Get Half as Far, Presentation to the International Arbitration Club of New York, August 13, 2020

It is a pleasure to speak with you today after 38 odd years in this arena. Having handed in my final class grades on Tuesday as a law professor (retiring on January 31, 2021) I am a has been or fast on my way to being one. I think of this as my farewell speech to international commercial arbitration and, upon the suggestion of my wife, have dressed accordingly in the tuxedo I wore yesterday to celebrate our fourth wedding anniversary. I speak to you out of my deep and abiding respect for international commercial arbitration. I have known this field’s promise and limitations, the good and the bad in it, and the best and the worst in it. So I appreciate your time today to discuss this topic. I will attempt to shed some heat but I also hope to bring some light on this arena. You will be the judge of whether I succeed. The presentation will be on the way forward for the New List - Arbitrators of African Descent with a US Connection (https://www.simpsonadr.net/files/NewList2020.07.30Edited.pdf). The bottom line will be you should hire, promote, and appoint these people in international arbitration practice. It is in the best interest of your clients, your firms, and yourselves – and for international commercial arbitration. The durability of international arbitration as the world’s dispute resolution mechanism may depend on it.

COVID-19 and new ways of doing arbitration: are they here to stay?

As a result of the COVID-19 crisis and containment measures adopted by States, thetraditional practice of arbitration was forced to make a change. Or two. Or many. This article aims toaddress some of the initial challenges spotted by players, already available solutions, and institutionalresponses. On a second stage, a forecast on new trends of arbitration will be shared. Finally, the essaywill balance the good, the bad and the uncertain of these new ways of doing arbitration.

International commercial arbitration in Canada after Uber Technologies Inc v Heller

Abstract This article examines the Supreme Court of Canada’s judgment in Uber Technologies Inc v Heller from an international commercial arbitration perspective, focusing on two specific issues. The first issue is the Court’s application of a provincial domestic, rather than international, arbitration statute to Uber and Heller’s international arbitration agreement, on the ground that the agreement is not ‘commercial’. The article argues that this finding is not in line with international arbitration instruments and practice. The second issue is the Court’s interpretation and application of the competence–competence principle, which permits arbitral tribunals to decide their own jurisdiction. The article maintains that the Court’s approach does not offend this principle, but that the Court provides insufficient guidance to lower Canadian courts on how to implement this approach in future cases. The article concludes that the Court’s decision, while far-reaching in many respects, should not disturb the enforcement of routine international commercial arbitration agreements in Canada. The decision may have implications, however, for arbitration agreements contained in international contracts—particularly standard form contracts—that might give rise to employment disputes, such as those in the gig economy, or that contain terms that may seem to bar a party’s access to the arbitral process.

Qualifications for Party Representatives and Arbitrators in Nigerian Arbitration: Shell v Federal Inland Revenue Service

AbstractNigeria's Court of Appeal held in Shell v Federal Inland Revenue Service (Shell v FIRS) that only Nigerian enrolled legal practitioners can sign processes for arbitration proceedings in Nigeria. Foreign qualified legal practitioners (FQLP) not enrolled in Nigeria are excluded. Arguably, this limitation extends to the conduct of the parties’ cases and excludes FQLP from appointment as arbitrators where the arbitration agreement specifies that arbitrators be legal practitioners. Shell v FIRS however, contrasts with Stabilini Visinoni v Mallinson, in which the same Court of Appeal had emphasized the flexibility of the arbitral process (which typifies judicial policy in any arbitration-friendly jurisdiction), particularly recognizing that arbitration practice is open to lawyers and non-lawyers alike. Consequently, this note recommends that Nigeria's Arbitration Act be amended to allow for representation by “persons” of the parties’ choice, mirroring the IBA Guidelines on Party Representation in International Arbitration 2013 and article 5 of the UNCITRAL Arbitration Rules 2010.

One Real Estate Complex: Concept and Prospects of Law

One of the most important and discussed topics of Russian civilization is the issue of objects of civil law. The topic under study is not adequately reflected in domestic civil law and judicial arbitration practice. According to legal scholars, the ongoing changes in domestic civil legislation have not eliminated problems that relate to objects of civil law. The constant complication of civil law turnover and the development of domestic science of civil law are forced to carry out targeted work in this direction. The domestic legislator initiates the necessary new norms of civil law. As a result, this entails, among other things, the emergence of new objects of civil law. The expediency of expanding the list of objects of civil law requires a rethinking of existing legal concepts and work on serious theoretical and practical justification of new ones. In legal science and practice, the need to include the legal concept of "single immovable complex" in the current civil legislation of the Russian Federation is proved Legal scholars have formed various opinions that characterize it. Domestic civilizations have identified and analyzed the theoretical and practical shortcomings of a single immovable complex. A comparative legal study of a single real estate complex, an enterprise as a property complex, a complex thing was carried out and it is confirmed that they are not identical. Obviously, a single immovable complex is a necessary and relevant legal concept of domestic scientific thought. In order to create a single real estate complex, some conditions are needed. The rights holder of movable and immovable property by his will decides to create it. The permitting authorities, through State registration, decide to establish. Disadvantages of a single immovable complex, both theoretical and practical, are indicated. Similarities and differences in the design of the enterprise as a property complex, a complex thing, and a single real estate complex made it possible to identify the features of the legal status of the latter and distinguish it as an independent object of civil rights. Despite the fact that in the Civil Code of the Russian Federation there are such legal concepts as "enterprise as a property complex" and "complex thing," the inclusion of a single real estate complex in the current civil legislation is necessary. The legal significance of this concept is unconditional. It justifies its own point of view on the problem and the place of a single immovable complex in the system of objects of civil law. Recognizing the need for the concept of "single immovable complex" in the current civil legislation of the Russian Federation, the domestic legislator should focus on its significant theoretical and practical shortcomings that impede the effective enforcement of the provisions of Art. 1331 of the Civil Code of the Russian Federation. Domestic legislators need to give them an appropriate legal assessment, as well as suggest effective ways to solve them.

Соотношение публичных и частных финансовых интересов при приобретении недвижимого имущества в рамках контрактной системы в сфере закупок

The article reveals the problem of the correlation of public and private financial interests in the process of acquiring apartments by state and municipal customers. The legal approaches to the solution of this problem are presented using example of arbitration practice. In order to maintain a balance of public and private financial interests within the framework of the procurement contract system, it is proposed to purchase new apartments or in the secondary market exclusively from the owners (ownership of real estate is registered), the interests of which will be represented, if necessary, by attorneys or agents.

International Commercial Arbitration In Canada After Uber Technologies Inc. v. Heller

This article examines the Supreme Court of Canada’s judgment in Uber Technologies Inc. v. Heller from an international commercial arbitration perspective, focusing on two specific issues. The first issue is the Court’s application of a provincial domestic, rather than international, arbitration statute to Uber and Heller’s international arbitration agreement, on the ground that the agreement is not “commercial”. The article argues that this finding is not in line with international arbitration instruments and practice. The second issue is the Court’s interpretation and application of the competence-competence principle, which permits arbitral tribunals to decide their own jurisdiction. The article maintains that the Court’s approach does not offend this principle, but that the Court provides insufficient guidance to lower Canadian courts on how to implement this approach in future cases. The article concludes that the Court’s decision, while far-reaching in many respects, should not disturb the enforcement of routine international commercial arbitration agreements in Canada. The decision may have implications, however, for arbitration agreements contained in international contracts – particularly standard form contracts – that might give rise to employment disputes, such as those in the gig economy, or that contain terms that may seem to bar a party’s access to the arbitral process.

The Interpretation and Application of the 'Sphere of application of CISG', Formation and Modification of CISG Contracts, and Fundamental Breach of Obligations of CISG Parties and their Remedies: Some Evidence from China

The United Nations Convention for International Sale of Goods (CISG) was entered into force on 1 January 1988 and its impact in internationalizing commercial law and business transactions is pivotal. The People’s Republic of China adopted CISG on 11 December 1986 almost after a decade of the entry into force of CISG. More importantly, when the People’s Republic of China adopted its domestic contract law following the country’s legal reform in 1999, its new contract law is highly influenced by CISG. This paper after analyzing the judicial and arbitral practice of three decades of the application of CISG in the People’s Republic of China concludes that the practice is also ‘CISG-friendly’.

The setting aside and enforcement of intra-EU investment arbitration awards after Achmea

Abstract By rendering its preliminary ruling in Achmea v Slovakia, the European Court of Justice (ECJ) declared intra-EU investment treaty arbitration to be incompatible with fundamental principles of the European legal order. This decision does not only illustrate the challenge of regime interaction in international economic law but is also of highest practical relevance. Diverse and critical reactions from arbitral practice and legal scholarship suggest that it will ultimately be up to the courts within and outside of the EU to clarify how the ECJ’s findings in Achmea relate to the legal fate of arbitral awards. Against this background, the aim of the present contribution is to shed light on the judgment’s legal consequences on the post-award phase. As a starting point, an analysis of the judgment finds that the ECJ’s reasoning in Achmea is applicable to investor–State dispute resolution (ISDS) clauses contained in all intra-EU investment treaties, including the Energy Charter Treaty (ECT) when applied in an intra-EU context (Section 2). Based on these findings, we evaluate how the incompatibility of intra-EU investment treaty arbitration with the law of the European Union (EU law) affects setting aside proceedings (Section 3) and applications for recognition and enforcement of awards (Section 4) within and outside of the EU. We show that possible solutions may range from fully enforcing intra-EU investment awards to completely disregarding any legal effect. Evaluating the complex legal landscape applicable to both types of proceedings clearly illustrates that there is no simple ‘yes-or-no’ rule. Instead, factors such as the applicability of the ICSID Convention, the seat of the arbitral tribunal or the jurisdiction in which enforcement is sought are relevant but should not be considered in isolation. Instead, it is concluded that these factors must be considered as inter-related aspects of an analytical framework which may lead to a coherent understanding of the relationship between the European legal order and the settlement of intra-EU investment disputes (Section 5).

Overview of the Laws and Practice of Arbitration in Nigeria: From Preliminaries to Award

Overview of the Laws and Practice of Arbitration in Nigeria: From Preliminaries to Award

ORIGIN AND DEVELOPMENT OF THE INSTITUTE OF DIPLOMATIC PROTECTION (THROUGH THE INSTITUTIONAL MECHANISMS OF THE LEAGUE OF NATIONS AND THE UN)

The article examines the origin and evolution of norms related to diplomatic protection through the multilateral mechanisms of the League of Nations and the United Nations, as well as as a result of international judicial and arbitration practice. In particular, the main directions for improving the application of the institution of diplomatic protection are highlighted, primarily by the mean of recognizing of the citizen’s active right for diplomatic protection. It is emphasized that the institution of diplomatic protection has come a long historical way, which originatesfrom the days of theAncient World, passesthrough classical international law and gets its design in the modern international law. A very important step in the codification of norms related to the institution of diplomatic protection was made by adopting the 1963 Convention on Consular Relations. Further changes regarding the exercise of diplomatic protection are to increase the level of protection of human rights and their property, regardless of citizenship. It is concluded that this legal institution has come a long way in a short time, has evolved from an instrument of pure interventionism of the State to an effective legal instrument to protect the interests of its citizens abroad. One of the most serious criticisms of the traditional understanding of diplomatic protection was based on the unilateral nature of the state’s decision to protect its citizens: a person cannot influence on his own country to force it to protect his interests. Undoubtedly, here we are talking primarily about the imperfection of the legal nature of the diplomatic protection itself. When applying measures for diplomatic protection of their citizens or domestic legal entities, international legal relations arise that are unthinkable without the participation of the state. Logically, the state has the right to take or not to take measures or decide which measures to take. Thus, a person is not limited in rights, but, on the contrary, receives potentially other protective measures – diplomatic – that he would not have had if this institution did not exist.

The Incompatibility of Intra-EU Investment Treaty Arbitration With European Union Law – Assessing the Scope of the ECJ’S Achmea Judgment

In March 2018, the European Court of Justice rendered its Achmea judgment, by which the Court considered the investor-State dispute settlement (ISDS) clause contained in the Dutch-Slovakian investment treaty to be incompatible with EU law. Even though the judgement is considered to be a landmark decision, its potentially far-reaching consequences remain, due to a rather obscure legal reasoning, difficult to assess. The aim of the present contribution is to assess the scope of the Achmea judgment in order to shed light on its relevance for pending and future intra-EU investment arbitrations. In view of the ECJ’s Opinion 1/17 rendered in April 2019 and in consideration of recent arbitral practice it is concluded that the scope of the Achmea judgement concerns the incompatibility of intra-EU investment treaty arbitration with EU law. This means on the one hand that the reasoning in Achmea is transferable not only to ISDS clauses in other intra-EU BITs, but also to Art. 26 of the Energy Charter Treaty. On the other hand, the analysis shows that contract-based investment arbitrations are not concerned by the ECJ’s findings. Finally and in view of its clarified scope of application, the relevant factors for analyzing the consequences of the Achmea judgement are identified.

Reconsidering the Issues Regarding Validity of Arbitration Agreements Referring to Non-Existing Arbitral Institutions or Including Uncertain References to Arbitral Institutions and the Turkish Experience

Arbitration agreements referring to non-existing arbitral institutions or including undefined references to arbitral institutions are significantly observed in international arbitration practice. Validity of such arbitration agreements becomes debatable due to the pathological intent thereof. If the pathology may be resolved by way of interpretation in the manner that leaves no room for doubt, the ideal solution is resolution of such problems by way of interpretation by means of supporting parties’ common intent towards arbitration and of protecting legitimate expectations of parties in compliance with bona fides principle. However, if interpretation of an undefined reference in an arbitration agreement leads to uncertainty about competence of certain arbitral institutions, such agreement aimed at institutional arbitration either may be accepted to be turned into an agreement aimed at ad hoc arbitration or may be held null-and-void, depending on position of law of seat of arbitration. If seat of arbitration is also undefined or non-existing, arbitration agreement shall be held incapable of being performed and null-and-void. Attitude of Turkish courts seems in conformity with the three approaches to a large extent and may be qualified as satisfactory but determining validity of such arbitration agreements without reference to any law applicable and disregarding the right of access to justice should be criticized.

Striking a Balance Between Assistance and Interventionism: The Role of Courts in Rwanda-Seated Arbitrations

The African Arbitration Association was established in 2018 and its headquarters is in Kigali, Rwanda. This choice of location signals that Rwanda has made meaningful strides in improving its arbitration environment, at least in the opinion of African states. Many questions will arise as to whether Rwanda-seated arbitrations do indeed rest in a legally friendly environment, and receive optimum support of courts which act to foster the efficiency and effectiveness of arbitrations. The interplay between courts and arbitral tribunals in dealing with Rwanda-seated arbitrations is the subject of this article. Party autonomy, which broadly underscores the freedom of the parties to decide how their disputes should be resolved, is one of the most important principles in arbitration. This principle naturally translates to the autonomy of the arbitral process and notably the freedom of this process from undue judicial interference. While courts are indispensable in the success equation of the arbitral process, too much judicial intervention in matters of arbitration may have serious repercussions on the efficiency of arbitration. This article examines the autonomy of the arbitral process under the law and practice of arbitration in Rwanda. In doing so, the article discusses different practices in the leading places of arbitration on the interplay between courts and arbitral tribunals in dealing with matters of arbitration and compares these with the corresponding law and practice governing Rwanda-seated arbitrations. It concludes that, with the pro-arbitration stance often demonstrated by the courts in Rwanda and their sparing involvement in the arbitral process, the arbitration environment is as friendly as it is in most other states that are signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention, 1958). Rwanda-Seated Arbitrations, Mandatory Provisions, Party Autonomy, Jurisdictional Challenges, Kompetenz-Kompetenz, Negative Effect of Kompetenz-Kompetenz, Manifestly Void, Stay of Court Proceedings, Judicial Non-Interference, Pro-Arbitration Stance, One-Stop Adjudication