Arbitration Procedure Research Articles

Disputes in the sphere of social security: ways of prevention, essence and methods of resolution in the countries of the European Union

The article examines the European experience of considering disputes in the field of social security, the ways of their prevention, the essence and methods of resolution, the possibility of borrowing positive assets of foreign states in the law enforcement practice of Ukraine is considered.
 Having analyzed the European experience of resolving disputes in the field of social security, three ways of their possible settlement are distinguished: 1) with the help of special courts on social security issues (sectoral justice); 2) through a civil process in general courts; 3) by means of conciliation and arbitration procedures.
 It was determined that a social model has developed in European countries, which is based on such values ​​common to all EU member states, such as: a close connection between the level of economic development and social progress; high level of social security, which is universal in nature; developed legislation; equal opportunities and fight against discrimination; production democracy; dialogue of social partners within the framework of contractual relations; availability of developed social infrastructure; the key role of the state in solving social problems; the struggle for employment and eradication of the phenomenon of social rejection and poverty; decent salary; social justice and solidarity in society. These basic values ​​also formed the basis of consideration and resolution of disputes in the field of social security. The listed values ​​should form the foundation of the Ukrainian theory and practice of social disputes. It was determined that the national specifics and practice of each European state provide for the use of various methods of resolving social disputes with recourse to social courts, reconciliation services, mediation, arbitration and mediation. The activity of social courts is based on the principles of tripartite cooperation (tripartism). Court cases are considered by a panel consisting of a professional judge and two non-professional judges.
 In addition, state mediation and mediation are effective measures for the pre-trial resolution of social disputes in the EU countries. They contribute to the relief of the judicial system, saving time and financial resources of the parties to the dispute. These institutions are little known for Ukraine and, at the same time, promising.

An Experiment in Civil (Arbitrazh) Proceedings

There is no mention of a forensic experiment in the Code of Civil Procedure of the Russian Federation and the Arbitration Procedure Code of the Russian Federation. But the study of judicial practice in civil cases shows a very frequent use of experimental research by the court. Through the prism of the norms of the current legislation and the established law enforcement practice, the use of experimental research in the civil law process is analyzed, the fundamental basis for the legal regulation of the judicial experiment is determined. One of the research methods by which an expert comes to certain conclusions is an expert experiment, the results of the experiment in this case are mediated by the expert’s conclusion. However, experimental studies can also be carried out under the auspices of the court directly in the court session. Examples of such use from current judicial practice are given. Based on the approaches existing in science, a theoretical conclusion is made about the dual nature of the phenomenon of evidentiary activity under consideration: forensic and forensic experiments are ways (methods) of research (verification) of forensic evidence: as personal — explanations (testimony, conclusions, consultations) of the subjects of evidentiary activity, as well as substantive evidence. At the same time, experimental studies also act as ways (methods) of forming such forensic evidence as an expert opinion. For civil (arbitration) cases, it is necessary to create a scientifically based legal model for conducting a judicial experiment, built on the principles of civilistic competition and optionality. This is supported by the experience of using the judicial experiment both in Russian judicial practice and in the post-Soviet legal space (in particular, the experience of using experimental studies in the Republic of Belarus).

The Scope of the Application of Electronic Arbitration in Resolving Electronic Contract Disputes

This research aims to address the issue of electronic contract dispute settlement through electronic arbitration, which is considered a modern method utilized toresolveelectronic contract disputes between the parties to the legal relationship. This research also seeks to define the term ‘ electronic arbitration”and its problems, obstacles, how to implement its provisions and the procedures that must be followed to come up with a unified global model for the regulation of legal arbitration. The problem of this research lies indefining national and regional legislation to address all the issues presented by electronic contracts and how to arbitrate their disputes in an attempt to keep pace with the rapid developments of technology.The significance of this research lies in elucidating the substantive and procedural legal aspects of electronic arbitrationand understanding the law applicable to it in light of challenges in determining the place and time of the issuance of the electronic arbitrationawardbecause of the diverse locations where the parties to the disputes reside and the arbitral tribunal.Finally, its importance lies in attempting to guide how to implement electronic arbitration provisions. Keywords: electronic arbitration, electronic contracts, settlement of commercial disputes, nature of electronic arbitration, arbitration judgment, arbitration procedures, arbitrators. DOI: 10.7176/JLPG/124-01 Publication date: September 30 th 2022

ISSUES OF LEGAL REGULATION OF ONLINE DISPUTES IN DIGITAL ARBITRATION

Digital arbitration is an alternative dispute resolution mechanism, which is mainly implemented through the use of electronic means of communication. Digital arbitration has some advantages compared to traditional arbitration jurisdictions and other ADRs, as it is a fast, cost-effective, and efficient method of dispute resolution. Digital dispute resolution can be an ideal tool for resolving disputes arising from B2B e-commerce transactions, as it provides disputants with a time- and money-saving procedure that can be done without their physical presence and an impartial expert on the subject of the dispute. Currently, there is no effective legal framework designed to fully regulate digital arbitration procedures. Therefore, lawyers are forced to use the rules used for traditional arbitrations. We believe that the development of special legal regulations defining the rules of this procedure will greatly speed up the regulation process in this field.

Online Sports Betting in Brazil and conflict solution clauses

Sports betting sites are now a reality in Brazil. According to Exame1 magazine, in 2018, it moved around 2 billion reais per year, and with the imminent regulation of Act n. 13.756 /2018, it should move approximately 8 billion reais annually. Online gambling will only reach the peak of its market, according to Rohan Miller,2 when consumers’ risk perception is reduced or neutralized. Questions such as who to look for if something goes wrong and which laws apply in the event of a conflict should be answered clearly by the betting sites’ Terms of Service (EULAs). Therefore, this article’s general objective will be to analyze the methods of conflict resolution included in the Terms of Use of the 9 (nine) main sports betting sites used by Brazilians, namely: 1. Bet365; 2. SportingBet; 3. Betboo; 4. Betway; 5. Rivalo. 6. 22Bet; 7. Betmotion; 8. Bumbet; 9. Bet9. As a specific objective, we will analyze the mediation and arbitration procedures as well as the statistics of two ODR (Online Dispute Resolution) service sites used by the betting sites: the e-Commerce Online Gaming Regulation and Assurance (e-Cogra - online mediation service ) and Independent Betting Adjudication Service (IBAS online arbitration service). Both legally based in England. We could realize that the Brazilian bettor, as a rule, does not read the terms of service and is unaware of the conflict resolution clause provided by the website. Besides, through data analysis from eCOGRA and IBSA, we can state that Brazilian gamblers who access ODR service providers are very rare both because they are unaware and because of linguistic difficulties. Also, the chances of success in resolving conflicts in favor of the consumer through mediation are greater than through online arbitration. In short, we can say that the model established by the UK Gambling Act and the Great Britain Gambling Commission is a model that guarantees the fundamental principles of both mediation and arbitration (impartiality, due process, and easy access). The fact that arbitration and mediation are not binding on bettors under any circumstances also guarantees the parties equal treatment.

International Civil Dispute Resolution Mechanism in East Asia：The Combination of 999Arbitration with Mediation

With the acceleration of international economic globalization, international civil disputes are becoming more complicated. We are facing an urgent issue in which international civil disputes should be resolved quickly and safely with a low cost. East Asia has a promoting position in international economic disputes so the same issue also exists among East Asia regions. In recent years, the combination of arbitration with mediation is well practiced in Chinese arbitration procedure. This mechanism has attracted attention of the whole world. This article investigates on the dispute resolution, which is the combination of arbitration with mediation program in east Asia. The artilce also explores the possibility of the combination of arbitration with mediation program in solving disputes in East Asia and the world through perspectives of regional dispute resolution culture and party autonomy.

Peculiarities of competence and arbitration proceeding in the grain trade

Introduction. The article is devoted to the study of the functioning and peculiarities of proceedings in international commercial arbitration, specializing in trade in grain and oil crops. The article examines the features of arbitration proceedings that are characteristic of GAFTA arbitration. Summary of the main research results. The article is devoted to the study of the functioning and peculiarities of proceedings in international commercial arbitration, specializing in trade in grain and oil crops. The article examines the features of arbitration proceedings that are characteristic of GAFTA arbitration. The key differences of grain arbitration are established, namely: the specific qualification of GAFTA arbitrators in the field of trade in grain and oil crops, which distinguishes this arbitration institution from other permanent arbitration institutions; unique for arbitration proceedings is the presence of an appeal proceeding, which is also organized by the arbitration institution and gives the parties the opportunity to appeal the arbitration decision of the first instance; arbitrators reviewing first-instance decisions are not bound by the decision of the first-instance tribunal and have the opportunity to review the case with the addition of a new evidence base; availability of standard and simplified arbitration procedures, which effectively affects the time and financial resources of the parties to arbitration proceedings; the presence of a simplified procedure, which makes it impossible to appeal the arbitration decision, leaves only one arbitrator and significantly speeds up the arbitration of the case, standard for arbitration procedures, a high level of confidentiality of the proceedings, which can be especially important, taking into account the specifics of the grain trade market; features related to payment of arbitrators' work and payment of arbitration fees, depending on the parties' membership in GAFTA; the use of English law in arbitration, which in most cases is more applicable precisely for similar commercial disputes; arbitration proceedings in GAFTA in most cases take place without an oral hearing, only on the basis of written documents, which significantly speeds up the proceedings; parties can significantly reduce arbitration costs in GAFTA arbitration if they are members of the association, as in this case mandatory payments are significantly reduced; GAFTA arbitration effectively changed its working format during the coronavirus pandemic and moved to electronic document flow and electronic awards using electronic digital signatures and seals. Conclusions. The article establishes that specialized international commercial arbitrations on grain trade are an effective way of resolving commercial disputes complicated by a foreign element, taking into account the qualifications of arbitrators and the special arbitration procedure.

The universality of the participation of the prosecutor in the arbitration court when considering cases of an administrative offense

The article studies the issue of initiation by the prosecutor of the administrative-jurisdictional process in the arbitration court; the features of the prosecutor’s decision to initiate a case on an administrative offense, enshrined in the law, are revealed, numerous examples from the practice of arbitration courts are given, confirming the effectiveness and diversity of the activities of the prosecutor’s office in this area. The author draws a conclusion about the uniqueness of the activities of the supervisory authority, in connection with which the emphasis is placed on the problem of unreasonable restriction of the powers of the prosecutor in the arbitration process. The available theoretical research, as well as an analysis of the work of the prosecutor’s office in the field of protecting not only public, but public interests in various areas of legal relations, form the author’s conclusions about the need to make changes to the Arbitration Procedure Code of the Russian Federation, as well as relevant additions to the Concept of a unified Civil Procedure Code of the Russian Federation related to the expansion of the powers of the prosecutor in the arbitration process.

Algorithms for Managing the Redundancy of Onboard Equipment Complexes of Mobile Objects. Part 2. Paired Arbitration of Computers

The article solves the problem of operative selection of the redundant onboard equipment complex components configuration of the suitable in the current operating conditionаs in the interests of ensuring high fault tolerance of the complex, as well as achieving other operational and technical characteristics. The basis of the redundancy management system of the complex consists of configuration supervisors — as program subjects according to the number of its competitive configurations of heterogeneous and nonuniform equipment worked out in advance. The choice of the preferred configuration is proposed to be carried out by performing multi-level arbitration, which includes two phases of paired arbitration of computers and paired arbitration of configuration. It is proposed to include the means of both types of arbitration in each configuration supervisor, which ensures its self-sufficiency when participating in a competitive selection. The second part of the article is devoted to the computer’s arbitration for the implementation of redundancy management functions. The approach is applicable to a computing environment with many comparable computing devices and contains 2 phases. In the first phase, a preliminary selection of a competing pair of computers — as applicants for the implementation of redundancy management functions in them is carried out. In the break between the phases, the pair computers implement the procedures for pair arbitration of configurations given in the first part of the article. In the second phase, the final choice of the α-computer is made, in which the supervisor who won the arbitration will be implemented. In order to achieve the maximum possible centralization of selection procedures and, as a consequence, the exclusion of "bottlenecks" in terms of reliability of places, additionally proposed: the organization of secure data exchange between computers based on distributed registry technology; the procedure of paired arbitration of computers, consisting in mutual cross-validation of dominant supervisors of a pre-allocated pair by comparing preference matrices, including information parcels of arbitration objects. A methodological example that demonstrates the features of the system functioning in the conditions of computers degradation is given. The proposed approach can be used to solve the problems of reconfiguration control of heterogeneous computing facilities of technical objects on-board equipment complexes.

A Pathology (Yet) to Be Cured?

Fifty years ago, Frédéric Eisemann coined the expression ‘pathological clause’ to refer to arbitration clauses that substantially deviate from the essential requirements of a model clause. However, arbitration practitioners have not yet learned their lesson; the matter of pathology is far from being outdated. Arbitration clauses may be pathological if they do not provide for mandatory referrals to arbitration proceedings, or do not meet certain other requirements to provide for a workable arbitration procedure, or contain a reference to non-existing arbitral institutions and/or arbitral rules, or provide for a proceeding administered by an arbitral institution pursuant to different institutional rules. In most instances, the competent supervisory court (or the arbitral tribunal or institution dealing with a defective clause) seeks to cure these pathologies. Arbitral tribunals and national courts generally try to ascertain whether the parties’ real intention is to arbitrate, and, if that to arbitrate is apparent, to give effect to and enforce an otherwise invalid arbitration clause. In any case, parties should not blindly rely on tribunals’ and courts’ tendency to uphold such clauses; the only safe approach is to avoid pathology. pathological/pathology, arbitration clause, hybrid (arbitration clause), asymmetric (arbitration clause) effectiveness principle, validity, enforcement, vacatur contractual autonomy

Sports Arbitration Procedures and Rules in Jordanian Legislation Compared to the Court of Arbitration for Sports (CAS)

The research dealt with the procedures and rules of sports arbitration in both Jordanian legislation and the Court of Sports Arbitration CAS, by presenting the legal texts related to arbitration in both Jordanian legislation and the Court of Sports Arbitration CAS, to benefit from them in the development of sports legal rules within the national level. The research reached a number of results, including: Settlement of sports disputes in Jordanian legislation through the Sports Federation for Sports Activity. The jurisdiction of the Court of Arbitration for Sport (CAS) in accordance with the 2021 Jordan Sports Federations Regulations can also be terminated, after all internal methods or means have been exhausted.
 
 Received: 29 March 2022 / Accepted: 30 April 2022 / Published: 5 May 2022

Article: Access to Tax Treaty Dispute Resolution Mechanisms in Cases of Abuse

Reaching a common understanding of the interpretation and enforcement of tax treaties is a desirable policy goal. It results in higher certainty and helps to increase their effectiveness thus enhancing all the purported objectives of these international agreements. In this regard, dispute resolution mechanisms within international tax law fulfil a relevant coordinating function through the amicable assessment of frictions and mismatches in tax treaty provisions. Notwithstanding, access to these remedies is sometimes denied when the tax authorities consider that the case involves tax abuse even though anti-tax abuse measures usually pose some of the most complex interpretation challenges within tax treaties. Even after the post-BEPS wide implementation of broad-based treaty anti-abuse rules – such as the principal purpose test – countries are reluctant to grant unrestricted access to dispute resolution remedies. This contribution aims at depicting the rather asymmetrical state of affairs on the access to dispute resolution remedies in instances of tax abuse. Additionally, it purports to demonstrate that there are compelling policy reasons to support granting access to both mutual agreement and arbitration procedures in these cases and to criticize the incoherencies that originate from the existing restrictions. Tax treaties, dispute resolution, mutual agreement procedure, arbitration, MLI, Tax abuse, GAAR, PPT

Powers of the Court at the Stage of Initiation of Proceedings in Cases of Challenging Legal Acts

The article deals with the issues of unification of the norms of civil procedure and arbitration procedure on certain issues that arise when considering cases of challenging legal acts. Analyze the current legislation and law enforcement practice on the issue of consideration by the court of substantive legal requirements together with requirements arising from administrative and other public relations was made. The article consistently argues for the need for legislative consolidation of the possibility of joint consideration by the court of related requirements of a public and private legal nature. The conclusion is that it is expedient to consider the claims for damages together with the requirement to declare a legal act invalid (in whole or in part), which have the purposes of procedural economy and optimization of the burden on the judicial system.

Specialist Participation in the Arbitration Procedure from the Point of View of Adversarial Principle Implementation

The presence of two opposite specialist’s participation models used by the domestic legislator in three existing civil procedural codes demonstrates the competition of the adversarial principle implementation approaches in the civil procedure. The doctrinal assessment of each model of the specialist’s involving to the litigation is also ambiguous. This resulted, notably with the Plenum of the Supreme Arbitration Court «blessing», in the development of the practice of applying in the arbitration process the model enshrined in the Code of Civil Procedure of the Russian Federation, which gives rise to some kind of curiosity: the court calls the specialist not on its own initiative, in accordance with art. 87.1 of the Arbitration Procedure Code of the Russian Federation, at the request or with the consent of the parties, that, in particular, seems unacceptable in the specialized arbitration court, where an adviser from the apparatus of the same court can be called as a specialist. The question of the balance between public and private law elements of the adversarial principle has traditionally been the subject of doctrinal discussions. The article concludes that the implementation of the adversarial principle in the arbitration process is achievable only in combination with judicial guidance of the process, and the call of a specialist is possible only on the initiative of the arbitration court, taking into account the opinions of the persons participating in the case.

The Procedure for Concluding a Settlement Agreement in Civil Litigation

In article explores the procedure for concluding a settlement agreement in civil proceedings. It is shown that in accordance with the current civil procedure legislation, the issue of approving a settlement agreement is considered at a court hearing with the mandatory participation of all interested parties. The paper critically evaluates the exception to this rule, expressed in the possibility of sending an application for approval of a settlement agreement in the absence of interested parties (Part 3 of Article 153.10 of the Civil Procedure Code of the Russian Federation, Part 3 of Article 141 Arbitration Procedure Code of the Russian Federation). In the course of the conducted research, it was found that in civil and arbitration proceedings, the issue of approving a settlement agreement concluded at the stage of preparing the case for trial is resolved differently. The author makes critical comments on this. It is argued that the approval of the settlement agreement reached at the stage of preparing the case for trial, both in civil and arbitration proceedings, should take place in the preliminary, and not the main court session.

Subject of Civil Procedural Law: Historical and Legal Analysis

The article deals with the formation of the subject of legal regulation of civil, arbitration, administrative procedural law from 1864 to the present. Trends in a narrow and broad understanding of the subject of legal regulation, unification and differentiation of law in different time periods.The specifics of considering cases of a public law nature in courts of general jurisdiction (according to the rules stipulated by the CAS RF and the Code of Administrative Offenses of the RF) and in arbitration courts on the basis of the application of the Arbitration Procedure Code of the Russian Federation to all types of legal proceedings. Particular issues in the definition of the subject of procedural law are touched upon: place in the system of the law of enforcement proceedings, proceedings for bringing to administrative responsibility, the theory of judicial law, etc. A definition of the subject of legal regulation is given in relation to three procedural branches of law: civil, arbitration, administrative procedural law, in which the unity of the body, considering cases (the court), and the procedural form is seen as decisive.

W(h)ither Institutional Terms of Reference?

Although Terms of Reference (‘ToR’) have been a longstanding and distinctive feature of the International Chamber of Commerce (ICC) Rules of Arbitration for almost a century, their continuing relevance and necessity warrant scrutiny, considering the radical evolution of international arbitration in recent years. The introduction of sophisticated procedural tools and frameworks, together with most states and courts exhibiting ‘pro-arbitration’ attitudes, lead one to question whether ToR remain a necessary procedural tool. In answering this question, the article first assesses the historical context in which the ToR were introduced to serve as a submission agreement and questions whether ToR continue to serve their historical role. The article thereafter closely scrutinizes the ToR’s current features and functions and considers whether the ToR have outlived their usefulness by analysing whether they are needed to fulfil those functions. The fact that ToR are no longer required as necessary evidence of consent and/ or to assist in the enforceability of an award, together with the advent of new procedural tools and practices, have rendered the ToR all but superfluous in today’s context. The article proposes that the ToR’s mandatory nature be dispensed with in the interest of efficiency, making way for dynamic procedural alternatives. International Arbitration, Terms of Reference, ICC, Arbitration Procedure

Effectiveness of Arbitration in Construction Projects

Purpose: It is impossible to specify remedies against every possible situation that may be encountered in construction projects. Any dispute can be settled timely either by negotiation, mediation, adjudication, arbitration, or litigation. This study was based on the context of Road construction contracts selected from the Dispute Resolution Unit of the Department of Roads (DoR, Nepal. The emphasis of this particular research work was to evaluate the effectiveness of arbitration. Design/Methodology/Approach: The sixteen case studies were the major basis as a quantitative study for the assessment of the effectiveness of dispute adjudication by assessing the success rate of arbitration. Also, the familiarities of the parties about the provision and procedure of arbitration and its spirit/strength to resolve the disputes and responses of parties regarding the arbitration award were assessed based on the qualitative study. The content analysis in terms of percentage was the main tool for data analysis. Findings/Result: The arbitration award was not accepted in about 78.57% of disputed issues of these sixteen cases and referred to litigation, 42.86% issues were referred by the Employers, 25.00% issues were referred by the Contractors and 3.57% issues were referred by both the Employers and the Contractors. 100% of Employers and 100% of Contractors agreed that they know the procedure and provision of arbitration for the resolution of disputes. The majority of the Employers did not accept the arbitration award and referred to the cases to litigation while mostly were accepted by the Contractors except in a few cases. The majority of the Employers had the perception that the arbitration award was favorable to the contractors while most of the Contractors argued that the decisions were fair to both parties. The majority of the Employers said that it is comfortable to accept the litigation award concerning the arbitration award. It is a prompt, cost-effective, efficient, and easy way of resolving construction disputes. The rejection of the arbitration award has negative consequences for the efficiency of public spending and which is associated with the extensive delay in the project completion and the delay is associated with a cost overrun. While acceptance of arbitration award is associated with timely delivery of the project. The enforcement of arbitration awards is critical to the success of arbitration. In those countries where the arbitration is backed up by statute by acts and enforceable by law, it is found to be more successful and effective. Originality/Value: This study helps the DoR, Contractors, and other agencies such as the Public Procurement Monitoring Office (PPMO), Nepal council of Arbitration (NEPCA), and different Auditors and arbitrators of Nepal as it gives the perception of the contracting parties towards the arbitration process to familiarize the spirit of arbitration in the Nepalese construction industry. Paper Type: Policy Research

Особенности производства в арбитражном суде первой инстанции

The article contains some comments on the legal positions stated in the Decree of the Plenum of the Supreme Court of the Russian Federation No. 46 dated December 23, 2021, as well as on novelties in the regulation of arbitration web conferences. The Decree points the participants of procedural relations to the need for conscientious implementation of their rights and obligations in the conditions of an adversarial process. It also indicates their obligation to apply the consequences of abuse of procedural rights. The emphasis on the risky nature of procedural relations stimulates the application of liability measures and encourages participants to exercise their rights and obligations. The categories of "other economic activity" and "dispute on the right to real estate" underlie the competence of arbitration courts but remain unclear. The author criticizes the decisions of the Plenum to lower the requirements for qualifications of legal representatives and formalize their powers in technical actions. The fact that a contractual representative has to apply for admission at each court session contradicts the principle of procedural economy and the legal nature of the procedural legal relationship. The article also reviews the amendments to the Arbitration Procedure Code of the Russian Federation in terms of online court sessions.

The definitive impetus for access to justice: Mandatory consumer arbitration in Spain

The purpose of the following paper is to address the relevance of consumer arbitration as an effective procedural justice mechanism within the EU internal market. Thus, the article focuses on the possibility of introducing a mandatory consumer arbitration system in Spain that allows consumers to exercise their rights recognized by the rules in a fast, efficient and free way. For this purpose, the Portuguese consumer arbitration system and its evolution up to the establishment of a mandatory arbitration procedure for consumer disputes below a certain amount is also analysed.