Arbitration Research Articles

Electronic evidence in arbitration proceedings

This paper addresses electronic evidence focusing on arbitration rules of the leading ADR providers. It also narrows the topic to an empirical assessment using six categories of electronic evidence in a sample of 92 arbitration proceedings. The paper aims to offer the concept of electronic evidence in international arbitration, its admissibility and relevance criteria, and reach conclusions from an empirical analysis of a large sample of arbitration proceedings gathered from the Centro Brasileiro de Mediação e Arbitragem (Brazilian Center for Mediation and Arbitration). We conclude that electronic evidence is regularly used in arbitration and is relevant to the arbitrators’ reasoning. We propose a revision on the 2016 Draft Convention on Electronic Evidence to include arbitration.
 Index words: alternative dispute resolution; arbitration; electronic evidence; admissibility; relevance; weight; empirical analysis

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.

Courts’ Intervention in Arbitral Proceedings: The Afghan Arbitration Law Perspective

The paper explores the role of courts in arbitral proceedings in light of New York Convention on the Recognition and Enforcement of Foreign arbitral awards and the UNCITRAL Model law. It discusses the role of courts in arbitral proceedings from the perspective of the Afghan Arbitration Law. It analyzes the circumstances when courts can intervene in arbitral proceedings in all stages of the arbitration processes, including the setting aside of arbitral awards and the enforcement of awards. Then, it examines the legal framework governing the relationship between courts and arbitrators in Afghanistan, and the possible changes that could be made to enhance clarity on the extent of the courts' role in arbitral proceedings. Furthermore, the article considers the implications of court intervention in arbitral proceedings for the efficacy and credibility of the arbitral process in Afghanistan so that the law ultimately enhances the confidence of investors and businesses in the Afghan arbitration system, which will eventually contribute to the country's economic development and growth.

‘‘Two Tiers or Three Tier’ a Never-ending Saga of Dispute Settlement– A Delaying Mechanism Arbitration

Two Tier Arbitration or Appellate Arbitration is recognised by Court through its various judicial pronouncements. Even though Party Autonomy and fair mechanism are the stand points by which court gives importance or validity to Two Tier mechanism, it has unnecessarily opened the gates for delayed mechanism. The famous Centro trade Minerals and Metal Inc. v. Hindustan Copper Ltd. decision has further strengthened the principle that there is less chance of court intervention. All these shows the positive impact the particular mechanism will bring but the main question here is: Whether Arbitration mechanism is going far beyond speedy redressal of disputes? Or Whether the processes right now the Court’s rely on party autonomy is relatable to unnecessary court proceedings which we are tired off. In this Article the author’s try to analyse the repercussions that will create if Court starts supporting various appellate, revisions or review mechanisms in Arbitration proceedings. The Author’s surmises the Article by providing suggestions on appropriate implementation of Arbitration regime in India by comparing with other countries.

Digital Evidence: The Admissibility of Leaked and Hacked Evidence in Arbitration Proceedings

Digital Evidence: The Admissibility of Leaked and Hacked Evidence in Arbitration Proceedings

Justice, Third-Party Funding, and Tax Treaty Arbitration

Resolving tax treaty disputes and improving dispute resolution mechanisms for tax treaty disputes have been important topics for international tax for decades, but it has not been an easy journey for the international tax community including policymakers, international bodies, and academics to come up with a clear solution. Similar to other global policies that require a multilateralagreement, a multilateral approach to a global tax policy cannot be easy as relations among the states with different backgrounds need to be coordinated and it involves critical issues relevant to national interests such as tax sovereignty, revenue, conflicts with domestic laws, and financial resources. That being said, the current global approach to resolve unsuccessful Mutual Agreement Procedure (“MAP”) cases of a tax treaty seems fairly straightforward under both the Organization for Economic Co-operation and Development and the United Nations’ Model Tax Conventions as both simply suggest arbitration to step in to render a final decision for the unsuccessful MAP cases. However, due to the factors mentioned earlier, the vast majority of the bilateral tax treaties do notcontain the arbitration clause, and it seems quite clear that an approach needs to be made from both within and outside the boundaries of international tax, tackling sub-issue by sub-issue, in order to improve dispute resolution mechanism for tax treaty disputes. This Article aims to highlight the importance of having the arbitration clause in a tax treaty, and focusing on the financial aspects of tax treaty arbitration, examines whether third-party funding (“TPF”), which has become more mainstream in traditional international arbitration proceedings, could be utilized in tax treaty arbitration to remove certain financial barriers as in other traditional arbitration proceedings by analyzing (i) any legal barriers, (ii) benefits from a justice perspective, and (iii) investment merit from a funder perspective. For the analysis, the Article specifically discusses (a) the current issues and the status quo of the MAP and tax treaty arbitration, (b) how TPF has been utilized in international arbitration and helping parties without orinsufficient financial resources, (c) differences and similarities between tax treaty arbitration and other types of international arbitration i.e., international commercial arbitration, investor-state arbitration, and state-state arbitration, and (d) TPF from both the taxpayer claimant and the funder perspective.

Arbitral Anti-Suit Measures: Implications of Mutual Trust

Abstract Arbitration is a legal promise between the contracting parties, and they should hold their promises. If there is any breach of that promise or any attempt to breach, the violating party should bear the outcomes. Upon a breach of an arbitration agreement, remedies become more crucial than ever to refrain the other party from commencing parallel court proceedings. Together with a stay and damages, a party seeking an effective remedy may benefit from an anti-suit injunction issued by either the court or tribunal. This paper examines the application perspectives of the mutual trust principle to arbitral proceedings while speculating upon anti-suit measures granted by an arbitral tribunal. The discussions particularly highlight the rebirth of the issue in the EU following the Gazprom case and the relevance/irrelevance of the latter to the West Tankers scenario. Considering the reasonings in the respective cases, the paper emphasizes uncertainty about the effectiveness of arbitral anti-suit injunctions and their enforcement. Upon identifying major normative gaps and shortcomings created by the essence of the existing legal rules, the paper reveals possible practical complexities and likely ineffectiveness of such measures. The findings suggest that uncertainties might be ultimately resolved by the revisions of the law which are on the horizon and reassessment of West Tankers by the cjeu or possible revision of the existing Brussels Recast Regulation taking scrutiny of the Gazprom judgment. At this juncture, the paper will briefly delve into the impact of Brexit on anti-suit injunctions in support of arbitration and its implications for arbitration rules and practice in the changing landscape.

Parallel Arbitral Proceedings: An Analysis of the Issue of Parallel Arbitrations in International Commercial Arbitration within the European Legal Space

Abstract Avoiding lis pendens within the EU has always been considered a guarantee for effective judicial cooperation. However, since arbitration is excluded from the scope of European procedural law, questions have been raised as to how parallel arbitral and state court procedures will be regulated. This article aims to illustrate the mechanisms that have been proposed to resolve this issue outside the European Regulations’ scheme with a focus on parallel arbitrations. Under this scope, the author attempts to discuss the potential solutions that have been introduced in respect to “lis pendens” between an arbitral tribunal and a state court as well as their effectiveness. Taken the tie from this analysis, the last part of this article focuses on the issue of parallel arbitral procedures and whether conflicts of jurisdiction can be resolved by using the same mechanisms as adopted in the case of parallel the arbitral and state court proceedings.

Establishment of the Iranian Specialized Commercial Courts: A Pro-arbitration Stance?

Abstract Following the new approach of the Iranian Judiciary toward the Iranian Commercial Code and recent regulations, including the Guideline pertaining to the establishment of Commercial Courts, specialized commercial branches of Courts were established in Tehran in November 2020. These Commercial Courts are competent to hear, among other types of disputes, arbitration related disputes, both at the domestic and international level. The role of courts, whether supportive or interventionist, covers matters occurring prior to the commencement of arbitration, during the arbitral proceedings and specifically, after rendering the final arbitral award. It is expected that the specialized commercial judges in these Courts will develop the jurisprudence on arbitration further. Using doctrinal analysis and reviewing some of the latest decisions rendered by these Courts (relating to domestic arbitration), this article explores the jurisdiction of the specialized Commercial Courts and the added value they might bring to the Iranian arbitration forum. The present article comprises four sections. After recalling the background and jurisdiction of the new Commercial Courts in the first section, the second section will successively explain the potential role of the domestic courts within the arbitration landscape. The third section analyzes the recently published judgements of the Commercial Courts to see how they meet the globally accepted norms and standards in arbitration. The fourth and last section concludes the article which positions the newly established branches of the specialized Commercial Courts as a pro-arbitration stance in Iran. Overall, the article highlights the significance of establishing specialized branches of courts with the presence of judges who are aware of the fundamentals of arbitration in paving the way for Iran to be arbitration friendly.

Addressing Post-Award Court Proceedings In Taiwan: A Case To Exclude Judicial Review

Arbitration is widely used in public construction cases in Taiwan. Unfortunately, recent cases have shown that while arbitral awards may be made within a reasonable time, delays in the post-award in court proceedings is a cause of dismay and frustration for the successful party. This paper considers the possibility of excluding the right of recourse to courts against arbitral decisions, by either abolishing it by domestic law or permitting parties to the contract out of such. It concludes with the proposal for minor legislative change to the Taiwan Arbitration Law. Taiwan, setting aside awards, public construction, government procurement, concession agreement, exclusion agreement, STSP v Sheus, and manifest unfairness.

ADR ADVOCACY, STRATEGIES & PRACTICES FOR IPR

Intellectual Property Rights is considered to be a legal right which is granted to the person who is considered to be the originator or the composer of an original work or invention for a stipulated period of time. In the modernized world, along with the tangible assets, intangible assets also play a vital role. All types of IP rights are considered to be an intangible asset. Protecting these IP Rights is an essential part in business. It is the responsibility of the owner to protect his business IP rights. IP related lawsuits are initially filed in District Court, with appeal to the High Court. Alternative Dispute Resolution is a process used to resolve conflicts outside of the judicial system. The mechanism of arbitration will have legal obligation on the parties whereas the Mediation procedure is not so. Arbitration and Mediation process is used in IP related disputes which will be helpful for speedy disposal of the case and it is cost efficient to the parties which is one of the advantages to the parties. Disputes dealing with Business, Trade, Commerce and contracts, family related disputes, tortious liability can be sorted through ADR process. Similarly, ADR Process is used to solve IP Related disputes also. In order to disburden the judiciary from pending IP cases and for rendering justice without many complications, lawsuit can be filed through ADR mechanism. Based in Geneva, Switzerland, the WIPO Arbitration and Mediation Centre was established in the year of 1994 with the aim to solve the intellectual property disputes through ADR Mechanism. The author will be highlighting the comparative analysis of ADR process with US and UK.

Modern criminalistics in the conditions of war and global challenges ххi century: problems today and development prospects

The article is devoted to the study of topical problems of criminalistic science in modern conditions of martial law and global threats of the ХХІ century. The main trends in the formation and development of criminalistics in today’s realities are identified and analyzed, and promising areas of its scientific research are outlined. The emergence and formation of new areas of criminalistic science due to scientific and technological progress, the introduction of new technologies, and the need to identify specific traces and collect evidence (genomic, digital, nuclear, etc.) are substantiated. It is noted that it is important to take into account the current trends in the development of criminalistic science associated with the formation of individual branches (directions): medical, genotyposcopy, computer (digital), aerospace and nuclear criminalistics. In the context of the war in Ukraine and large-scale aggression from the Russian Federation, the relevance of the formation of a new scientific criminalistic direction of military criminalistics is noted, and its object, subject, system and tasks are defined.The problems of the formation and development of European criminalistics and the issues of integration of criminalistics into a single European criminalistic space are analyzed. It is substantiated that further prospects for the formation and development of criminalistic science suggest the need to reboot and modernize the current paradigm. In particular, we are talking about revising and significantly updating the modern understanding of the subject of criminalistics. The expansion of the boundaries of the application of forensic knowledge, which is required not only in the investigation of crimes, and their trial in criminal proceedings but also in the use of criminalistic science in various areas of legal activity (administrative, civil, economic, arbitration proceedings and even in constitutional jurisprudence) is considered and justified. The problems of the formation and development of European criminalistics and the integration of forensic knowledge into a single European criminalistic space are analyzed.

Consideration of Non-Property Claims in Simplified Proceedings

Based on the materials of judicial practice of arbitration courts and courts of general jurisdiction, the application of the provisions of Part 7 of Article 227 of the APC of the Russian Federation and Part 6 of Article 232.2 of the CPC of the Russian Federation is analyzed, according to which non-property claims submitted together with claims arising from civil legal relations and related to the category of cases subject to mandatory consideration in the said procedure are subject to consideration in simplified proceedings. The study was undertaken in order to establish the orientation and effectiveness of these norms in terms of the result pursued by the legislator, fixing this rule, identifying law enforcement problems. The methodological basis of the article consists of general scientific (analysis, synthesis, analogy, description, system) and private scientific methods (comparative legal, formal legal). In the course of the study, the purpose of this legal provision is outlined, the absence of its uniform application in civil and arbitration processes is stated, the reasons for the law enforcement difficulties encountered by the courts are substantiated. In conclusion, proposals are made to improve the norms in order to increase their effectiveness and achieve uniformity in judicial practice.

An overview of Macao’s new arbitration law: provisional measures and recognition of arbitral awards

An overview of Macao’s new arbitration law: provisional measures and recognition of arbitral awards

Procedural Estoppel in International Commercial Arbitration Proceedings

This article argues that arbitral practice has effectively given rise to a general principle whereby the parties to arbitral proceedings are deemed to have waived rights arising from a procedural rule where they have failed to timely raise an objection against a procedural irregularity. Tribunals do not refer to such a process as abuse of right, or procedural estoppel, but as a tacit waiver of procedural rights. Even so, the effects are the same. This rule is well enshrined in article 4 of the UNCITRAL Model Law on International Commercial Arbitration. There is a line of domestic case law suggesting that the presumption in favour of the waiver does not apply where the party in question had no knowledge of the facts giving rise to the breach; where failure to apply it was not predicated on bad faith and/or; where the delay in exercising the right was not significant.

The Dis-Embedded Arbitrator: Releasing Arbitration from Corruption-Shaped Environments in the Wake of the Odebrecht Arbitral Ordeal in Peru

Despite local instances of single arbitrators’ corruption not having proven completely absent from arbitration chronicles over the last decades, one may safely argue that until very recently, no scandal had ever been severe enough to shake the foundations of arbitration communities on a regional, let alone global, level. However, this eventually occurred in 2019 in Peru as the outcome of one of the countless parallel investigations stemming from the 2016 Odebrecht corruption saga, propagated from Brazil to the whole of Latin America, the Caribbean, sub-Saharan Africa, and beyond, and labelled by many as the largest scandal of its kind in recent history. Peru’s vicissitudes revolved around a number of corrupted arbitrators who systematically accepted bribes and political favours from Odebrecht in return for favourable awards upholding the repricing of public-procurement contracts. This story can teach us about more than the simple evidence that arbitrators, too, might fall for corruption; criminologically, it suggests that arbitration as a dispute-resolution mechanism can find itself embedded within regionalised networked systems of corruption-prone regulatory capture, and even play an active role in their normalised perpetuation. To prevent this, while having regard for safeguarding the independence and confidentiality of arbitral proceedings to the highest possible extent, the enactment of context-sensitive binding regulation is advised.

The Pot ential of the Digital Transformation of Arbitration Proceedings

The Pot ential of the Digital Transformation of Arbitration Proceedings

The Role of the Supreme Court of the Russian Federation in Ensuring the Institutional Development of the Judicial System and Independence of the Judiciary

The article considers institutional changes in the judicial system through the creation of appellate and cassation courts. Their importance for ensuring the independence of the judiciary and increasing the effectiveness of judicial protection of the rights and freedoms of citizens is substantiated. The principle of extraterritorial development of the judicial system of the Russian Federation is revealed. The provisions on changing the composition, structure, judicial powers of these courts, their place in the unified judicial system of the Russian Federation are analyzed. The role of the Supreme Court of the Russian Federation in the “procedural revolution” that began in October 2017 through the development of a full-scale package of amendments to the procedural codes is shown. New rules for participation in civil, arbitration and administrative processes were outlined, new deadlines were fixed; new withdrawal rules; new prejudices. Particular attention is paid to the measures taken by the Supreme Court of the Russian Federation aimed at improving the quality and efficiency of justice of the peace, the equal distribution of the workload in the absence of a justice of the peace for good reason. The role of the Supreme Court of the Russian Federation in the development of conciliation procedures through the expansion of instruments for conciliation is also noted. The conclusion is formulated about the importance of judicial and judicial changes for the effective development of the judicial system in the modern period.

ARBITRATION IN CHINA AND ASEAN: ISSUES AND CHALLENGES

This paper seeks to explore key issues and challenges impacting trade and business disputes between China and ASEAN countries. Arbitration has become increasingly popular as a dispute resolution mechanism in China and ASEAN, especially with the rise of cross-border transactions and foreign investment. However, there are several challenges and issues associated with arbitration in the region. One major challenge is the lack of uniformity and clarity in the legal framework. There is a diverse legal system in the region, and the inconsistency in the arbitration laws and regulations makes it difficult for parties to agree on the arbitration process. Another challenge is the shortage of qualified arbitrators in the region, which can lead to delays and affect the quality of arbitration awards. The cost of arbitration is also an issue, and the lack of transparency in the cost structure can create disputes between parties, further delaying the arbitration process. The lack of public awareness and education about arbitration is another challenge, which can lead to parties opting for traditional litigation methods. Finally, the lack of transparency in the arbitration process can create mistrust among parties, affecting the credibility of the process. Addressing these challenges will require collaboration between governments, arbitration institutions, and stakeholders in the region to ensure the effectiveness and efficiency of the arbitration process.

Computer Vision System For Backflip Motion Recognition in Gymnastics Based On Deep Learning

Reliance on computer vision systems in the sports field is one of the very important topics, which are of high importance, especially in the arbitration process or evaluating the accuracy of the player’s performance of the movement. It is better to rely on computer vision systems that are more accurate in the arbitration process. In this article, a method was presented to distinguish one of the important movements of the gymnastics player, by relying on deep learning techniques. The dataset was built based on high-quality video clips found on YouTube for tournaments held from the period 2018-2022, due to the absence of The dataset available. This data was divided into three sections: 70% for training, 10% for validation, and 20% for testing. Two models of the convolutional neural network yolov7 and yolov5 were trained, and the results obtained after testing the results of the models show that the seventh version was the best , Recall, Precision and Mean Average Precision criteria were adopted to evaluate the performance of these technologies.