Arbitration Research Articles

VECTORS OF THE DIRECTION OF DEVELOPMENT OF THE DOMESTIC LEGAL DOCTRINE IN THE FIELD OF PROTECTION OF CIVIL RIGHTS, FREEDOMS AND LEGITIMATE INTERESTS

The article is devoted to determining the main ways of development of legal doctrine. It is shown that the issues of protection of civil rights, freedoms and legitimate interests are of fundamental importance in all branches of law, and in modern conditions the problems of improving the mechanisms of alternative (non-judicial) legal protection come to the fore. The domestic system for the protection of violated and contested rights is three-tiered and includes: state (judicial) protection, alternative (private law) protection in the form of arbitration proceedings and self-defense of law. Until now, it has not implemented a mechanism for resolving legal conflicts. The classification of types of dispute settlement into out-ofcourt and judicial is substantiated, the civil law nature of all forms of out-of-court reconciliation is proved. The phenomenon of judicial reconciliation is analyzed. The nature of the judicial conciliation procedure is analyzed.

The legal construction for the International Chamber of Commerce arbitration in resolving corporate conflict

The International Chamber of Commerce (ICC) is a private international non-governmental organization that provides its services to the international trade sectors (Wetter, 1985). Further, the ICC supervises its arm known as the International Court of Arbitration, which is an independent arbitral institution, affiliated with the ICC, which administers arbitration proceedings following the arbitration rules of the ICC but without adjudication of disputes as the adjudication of disputes is the jurisdiction of the arbitral tribunal. Yet, we have two problematic issues that the research treats: the confusion in the nomenclature and competencies between the components and units of the ICC during its practice of arbitration to settle corporate conflicts; while the second issue is that the basic elements of the arbitration process at the ICC based on its arbitration rules is not clear. Hence, the research approached these two issues in a direct presentation of the reality of arbitration at the ICC. The research emphasized the new modifications of the ICC arbitration system that resolve both above problematic issues.

Санкції до сторін арбітражного розгляду для запобігання виведенню капіталів за межі України: нові виклики публічним інтересам в умовах воєнного стану

Санкції до сторін арбітражного розгляду для запобігання виведенню капіталів за межі України: нові виклики публічним інтересам в умовах воєнного стану

The resolution of unilateral claims and maritime features by other countries on Indonesia’s sovereign rights in the North Natuna Sea through the PAC to strengthen the maritime fulcrum in Indonesia

Maritime zones in bordering countries often meet and overlap, leading to disputes such as contested areas, overlapping areas, excessive claims, and unilateral claims. Indonesia, as a non-claimant country, faces a unilateral claim dispute affecting its sovereign right in the North Natuna Sea due to China having made unilateral claims to sovereignty and control of the Traditional Fishing Ground area, which contradicts the UNCLOS. This paper presents research on the settlement strategy, using a qualitative method and interpretative research philosophy. The results suggest that Indonesia can take PCA steps to resolve the issue, as it cannot take ICJ or ITLOS steps due to Indonesia’s non-participation in the delimitation dispute but the country affected by unilateral claims from China and the need for agreement between parties. The appropriate step is to seek clarification and a decision from the PCA to resolve this issue. The advantage of opting for the PCA Step is that the absence of the State in the tribunal does not preclude the continuation of arbitral proceedings, allowing for effective and efficient completion without requiring consent from the other party. This research highlights the importance of addressing maritime disputes in the South China Sea.

Beyond the Access to Justice Framework: The Political Economy of Arbitration Law

Beyond the Access to Justice Framework: The Political Economy of Arbitration Law

Performance Assessment of an ITU-T Compliant Machine Learning Enhancements for 5G RAN Network Slicing

Network slicing is a technique introduced by 3GPP to enable multi-tenant operation in 5 G systems. However, the support of slicing at the air interface requires not only efficient optimization algorithms operating in real time but also its tight integration into the 5 G control plane. In this paper, we first present a priority-based mechanism enabling defined performance isolation among slices competing for resources. Then, to speed up the resource arbitration process, we propose and compare several supervised machine learning (ML) techniques. We show how to embed the proposed approach into the ITU-T standardized ML architecture. The proposed ML enhancement is evaluated under realistic traffic conditions with respect to the performance criteria defined by GSMA while explicitly accounting for 5 G millimeter wave channel conditions. Our results show that ML techniques are able to provide suitable approximations for the resource allocation process ensuring slice performance isolation, efficient resource use, and fairness. Among the considered algorithms, polynomial regressions show the best results outperforming the exact solution algorithm by 5–6 orders of magnitude in terms of execution time and both neural network and random forest algorithms in terms of accuracy (by 20–40 %), sensitiveness to workload variations and training sample size. Finally, ML algorithms are generally prone to service level agreements (SLA) violation under high load and time-varying channel conditions, implying that an SLA enforcement system is needed in ITU-T's 5 G ML framework.

Calibrating De Novo: Judicial Review of Arbitral Jurisdiction

De novo review of arbitral jurisdiction at the post-award stage that typically involves full, independent assessment of arbitrators’ findings with respect to questions of law and fact has become the norm under most legal regimes. This approach is geared towards legitimacy of the arbitral process and ensures that a party contesting jurisdiction has full opportunity to do so before the courts. However, while seeking to preserve important public policy objectives, de novo review may sometimes lead to inefficiencies and unfairness in the process, contrary to arbitration’s stated goals of obtaining the fair resolution of disputes without unnecessary delay or expense. This article thus calls for a critical evaluation of the de novo standard with a view to developing a more balanced system that would pay due regard to the competing goals of efficiency and legitimacy of the arbitral process. arbitral jurisdiction, jurisdiction of arbitrators, control of jurisdiction, review of jurisdiction, standard of review, de novo review, full review, rehearing of jurisdiction, deference to arbitrators, jurisdiction and admissibility

The Crisis in World Trade Law: How the Dust Is Settling

Abstract: Reform and extension of world trade law have stalled because of the WTO's consensus rule. The sense of crisis has been exacerbated by the US refusal to approve new members to the WTO Appellate Body, preventing settlement of disputes arising from current world trade law, and by the United States dropping out of the most promising plurilateral approach to extending world trade law. By unilaterally increasing tariffs, the Trump administration further indicated the US disregard for world trade law. After January 2021, President Biden quickly made clear that he would not reverse the US position on the WTO, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), or recent tariff increases. Other countries' responses to the blow to enforcing and extending world trade law were hampered by the COVID-19 pandemic that curtailed face-to-face meetings in 2020 and 2021, but the dust began clearing in 2023. In June 2023, the UK became the first new member of the CPTPP; China and Taiwan are next in the queue for accession. In 2023, Japan became the 53rd signatory of the Multi-Party Interim Appeal Arbitration Arrangement (MPIA), whose signatories recognize binding arbitration decisions on WTO rulings; the United States rejects the MPIA. The article ends by drawing conclusions about the future of the world trade system and the US response to initiatives supported by its major allies and other major trading nations.

Modernization and Reform of the ICSID Mechanism: Based on New ICSID Rules for 2022

The Investor-State Dispute Settlement (ISDS) mechanism plays a significant role in international investment governance. Recent years, this mechanism has faced increasing criticism and reform pressures. In order to establish procedures that are more transparent, efficient, cost-effective, and environmentally friendly, the International Centre for Settlement of Investment Disputes (ICSID) initiated a modernization reform of its rules in 2016, and the new rules came into effect on July 1, 2022. This reform marks an important milestone. This article primarily employs methods of literature review, inductive analysis, and case study analysis. This reform improves procedural efficiency, reduces costs, and enhances the transparency of arbitration proceedings. This reform has also driven the modernization of ICSID rules, furthered the deepening of ISDS mechanism reform, and had a significant impact on the practices of relevant countries and stakeholders.

Indirect Expropriation Clause Clarified in Recent Colombian BITs

Over the past two decades, Caribbean states have been faced with a significant number of investment arbitration proceedings in which investors have claimed that public interest regulatory measures constitute indirect expropriations of foreign investment. As a result, arbitral tribunals have ordered host states to pay heavy compensation to foreign investors. To preserve its right to regulate in the public interest, Colombia has clarified the indirect expropriation clause in most of its recent international investment agreements, clarifying the extent to which a public interest regulation that affects foreign investment constitutes an indirect expropriation. This article seeks to determine to what extent the new clauses of the Colombian agreements contribute to preserving the state’s right to regulate in the public interest.

Introduction to the Second Issue of 2023

Dear Readers,We proudly present the Second Issue of the International Journal of Law in Changing World –IJLCW–volume two. We are delighted that this Issue is an example of international knowledge exchange. Authors worldwide presented their papers on current legal problems in South Africa, Russia, India, Greece, Spain, Algeria, and Iran. Our authors gave the Journal the honor of publishing highly relevant research papers devoted to different aspects of law and regulations that the modern world faces. This Issue presents the paper "European private international law and national civil codes: interactions and Synergies." Professor Martín Jesús Urrea Salazar (Spain) explores the role of global law in the current legal reality and the importance of autonomy of the will in regulating international legal relationships.The following paper is entitled "Employment Implications for naturalized South African citizens" by William Manga Mokofe (South Africa). Considering the historical context, the author provides insights into the challenges and opportunities these citizens face in the labor market."The human right to safe drinking water -a study of the prospects for the accession of Arab countries to the 1992 Water Convention" by Laidani Mohammed and Djairene Aissa (Algeria) devoted to identifying the international recognition of the human right tosafe and safe drinking water, as well as the 1992 Water Convention, which works to protect and use transboundary watercourses and international lakes and their relationship to sustainable development and environmental protection, as well as the prospects and consequences of the accession of Arab countries to this Convention to ensure water security.The paper "The right to explanation in the processing of personal data with the use of AI systems" by Professor Eleftheria (Ria) Papadimitriou (Greece) refers to the legal basis of a new, independent, sui generis right to explanation that data subjects areafforded when automated decision-making processing takes place."Artificial intelligence and its role in the development of the future of arbitration" by Mohammad Ali Solhchi and Faraz Baghbanno (Iran) studies ethical considerations such as privacy and bias that must be taken into account to ensure that AI does not compromise fairness or jeopardize confidentiality in arbitration proceedings. The paper "Artificial Intelligence and National Security: perspective of the Global South" by Kushal Srivastava (India) aims to depict a descriptive approach to the perspective of the global South, and it analyses the entire situation of AI and its prospective future in the cyber security and national security of the connected nations. Another paper, "The Doctrine of Beneficial Ownership in Russian Law" by Tikhon Podshivalov (Russia), addresses the problems of differentiation of the spheres of application of doctrine, the piercing corporate veils and the doctrine of beneficial ownership.Both of these doctrines are grounds to challenge corporate decisions.The Journal also contains the paper "The right to development: BRICS' understanding of the human rights," written by Danil Karimov and Moritz Hieronimy (China), which analyses one of the relatively new human rights -the right to development. The authors conclude that implementing and applying this right in international law is necessary to develop society and social relations further.We truly hope you will find this Issue valuable and informative because that is the mission of the Journal –to find solutions to crucial legal issues that arise from the forever-changing world.We want to thank our authors, reviewers and editorial team members for their excellent job, support, and efforts to make the Second Issue possible. We hope the Journal can inspire academics and researchers to keep expanding their horizons and reducing the research distance between countries. Sincerely yours. Editors-in-Chief Elizaveta Gromova and Daniel Brantes Ferreira.

ARTIFICIAL INTELLIGENCE AND ITS ROLE IN THE DEVELOPMENT OF THE FUTURE OF ARBITRATION

AI has proven to be a powerful tool in various fields, and its integration into arbitration is highly anticipated due to its potential to improve efficiency, accuracy, and objectivity. This paper aimed to analyze how AI can help streamline arbitration, reduce costs, ensure faster dispute resolution, and improve accessibility. By using machine learning algorithms and natural language processing techniques, AI systems can analyze large volumes of legal text, extract relevant information, recognize patterns, and predict case outcomes. In addition, AI-driven chatbots could provide users with instant support and assistance in navigating the complex arbitration process. However, ethical considerations such as privacy and bias must be taken into account to ensure that AI does not compromise fairness or jeopardize confidentiality in arbitration proceedings. The article concludes with an examination of the transformative impact that artificial intelligence will have on the future of arbitration and emphasizes the needfor continued research and collaboration to realize its full potential while preserving the integrity of arbitration practice.

Restorative Justice Settles Health Disputes Between Patients and Hospitals from an Inclusive Justice Perspective

The legal system in Indonesia has seen significant developments in handling healthcare disputes between patients and hospitals through the introduction of the concept of Restorative Justice. The principles of Restorative Justice and inclusive law can be integrated to create a fair, inclusive resolution of conflicts and repair damaged relationships resulting from these disputes. The objective of this research is to analyze the implementation of Restorative Justice in enhancing the resolution of healthcare disputes between patients and hospitals, considering an inclusive legal framework, and identifying potential major obstacles. The research method used is normative research with a focus on legislative analysis and legal literature to explore the concept of Restorative Justice within an inclusive legal framework for resolving healthcare disputes between patients and hospitals. The researcher employs literature review and document analysis techniques to gather and analyze the legal data required for this research. Implementing Restorative Justice for resolving healthcare disputes between patients and hospitals within an inclusive legal framework is an effective approach for resolving healthcare conflicts. Restorative justice emphasizes relationship restoration and mutual understanding over punishment and can be applied in cases of malpractice, patient dissatisfaction, or violations of medical ethics. To be successful, relevant regulations such as the Arbitration Law in Indonesia, trained mediators, and the involvement of all relevant parties are necessary. Protecting patients' rights, transparency, accountability, and effective communication should also be a focus. By implementing restorative justice and an inclusive legal framework, the resolution of healthcare disputes can be more effective, fair, and can improve the relationship between patients and hospitals

Natural Resource Management: Legal and Governance Issues of Reko Diq Project

Balochistan Province of Pakistan is gifted with enormous reserves of minerals owing to its unique geological condition. One of the most important mineral resource projects is the Reko Diq mining project which is one of the largest projects of its kind globally. The Reko Diq mineral resource located in the mineral-rich Tethyan belt was discovered by the Geological Survey of Pakistan (GSP) from 1960 to 1970. The estimated reserves of Reko Diq comprise 12.3 million tons of copper and 20.9 million ounces of gold. However, the Reko Diq project became embroiled in legal disputes and controversy when the Balochistan government, represented by the Balochistan Development Authority, signed agreements with foreign investment companies for gold and copper exploration in the area of Reko Diq at Chagai. This research paper examines the establishment of the Chagai Hills Exploration Joint Venture Agreement (CHEJVA), analyzes the Supreme Court's decision on Pakistan regarding Maulana Abdul Haq Baloch's case against the government of Balochistan, and highlights the arbitration proceedings of the International Centre for Settlement of Investment Disputes. The research also concludes that an American mineral company Broken Hills Proprietary (BHP), took advantage of the unstable political situation in Balochistan under the caretaker government in 1993. The Balochistan Mineral Rules, 2002, were enacted to grant undue relaxations favoring foreign companies. These issues significantly impacted the validity of the Reko Diq agreement. Consequently, this case created an impression that foreign investments are not secure in Pakistan, necessitating actions to protect their interests. Moreover, the Reko Diq case had various economic impacts on Pakistan and hindered the development of the province and the country. This research paper recommends reforms in the legal framework of the mineral sector and advocates for advanced equipment in exploration to create employment opportunities. Additionally, establishing a domestic dispute resolution forum is proposed as a more favorable approach for settling such disputes, rather than resorting to international jurisdictions.

Civil Legal Protection Against Misuse of Free License of Copyright Works For Font Designs Provided For Personal Use

Purpose: The purpose of this research is to find out how civil law protection is applied and how civil disputes are resolved regarding the abuse of free licenses for personal use of copyrighted font design works. This research uses empirical and sociological jurisprudence with a descriptive qualitative approach. Copyright—the exclusive right owned by the creator of the creation—emerges directly from the declarative basis for seeing a creation made. There are two ways of settling disputes over license abuse: non-litigation (outside the Court) and litigation. Theoretical reference: Five facets of the activity are covered in this article. First, the primary methods and early experiments pertaining to human computer emulation are examined. The second section looks at the connected moral, legal, and technical issues raised by the artificial person phenomena. Thirdly, consideration is given to licensing provisions for the use of cloned individuals' backbone platform. Fourth, the division of virtual people within the public domain legal framework is examined. Lastly, improvements to the pertinent legal perspectives, driven by the development of mind-uploading tech, are expounded upon. All things considered, the study contributes to the advancement of moral and legal guidelines for the science and technology of artificial life. Method: The type of research used is empirical and sociological juridic research with methods of qualitative approaches that are descriptive and tend to use analysis. Result and Conclusion: Based on research findings, this study shows that the protection of civil law and the process of settling civil disputes is linked to license abuse. Instead, an arbitrator helps the arbitration process. Furthermore, the primary legal source for protecting individuals from the use of free use licenses in private is Article 113, paragraph (3) of the Copyright Act No. 28 of 2014. Article 40, paragraph (1), letter F provides further explanation. Implication of Research: is to explain the protection of public law against the abuse of a copyright-free license for the design of fonts available for public use Originality/Value: this research concentrates on the area of law related to the abuse of free licenses and copyright made personally.

HAKAMLIK SUDINING HAL QILUV QARORI TUSHUNCHASI VA HUQUQIY AHAMIYATI

"Arbitration courts, in our opinion, are one of the main institutions of civil society. A modern legal state cannot exist and function without a strong civil society. The experience of developed Western countries shows that citizens and entrepreneurs have a very positive attitude towards arbitration courts, since arbitration processes are designed to quickly and efficiently resolve disputes and other problems in civil and economic activities. Therefore, in the context of the further deepening of democratic reforms and the formation of civil society in our country, it is extremely necessary to widely develop the institution of arbitration. At the same time, it should be noted that today, in addition to competent courts, various problems arise when considering a number of cases of civil and economic disputes by arbitration courts. This article, based on an analysis of foreign experience, examines the issue of the concept and legal significance of an arbitration award. The interaction of the arbitration court with the competent (state) courts, its procedure and shortcomings in focusing on the execution of the decision of the people has also been studied. In accordance with this, the author’s definition of the concept of resolution will be developed, as well as proposals and recommendations for our national legislation regarding the application of the mediation procedure. "

Arbitration System in Commercial Disputes in Pakistan and Enforcement of Foreign Awards

Arbitration, as a means of resolving commercial disputes, plays a pivotal role in Pakistan's legal landscape. This article provides an in-depth exploration of Pakistan's arbitration system concerning commercial disputes and the mechanism for the enforcement of foreign awards within the country. The introduction presents an overview of arbitration as a preferred method for resolving commercial conflicts and emphasizes its significance in Pakistan's legal framework. It outlines the specific focus of the article on Pakistan's arbitration system and the crucial aspect of enforcing foreign awards within the country's jurisdiction. The article delves into Pakistan's Arbitration Act of 1940 and subsequent amendments, elucidating the core provisions governing arbitration proceedings. It examines the statutory mechanisms guiding the recognition and enforcement of arbitral awards, emphasizing the legal foundation for arbitration in Pakistan. Detailing the arbitration process in commercial disputes, the article delineates the procedural aspects, practices, and challenges encountered within Pakistan's arbitration system. It provides insights into the advantages of arbitration over litigation and assesses its efficacy in addressing commercial disputes. Focusing on the enforcement of foreign arbitral awards, the article expounds upon Pakistan's legal framework for recognizing and enforcing awards rendered in foreign jurisdictions. It discusses the procedural intricacies involved in seeking enforcement within Pakistan's courts. Highlighting the challenges impeding the enforcement of foreign awards, the article addresses issues such as grounds for refusal and judicial interpretation. It proposes potential reforms and solutions aimed at enhancing the enforcement mechanism, aligning it with international standards. The article summarizes Pakistan's arbitration system in commercial disputes and the enforcement process for foreign awards. It underscores the implications of an efficient arbitration regime and offers suggestions for future reforms and research directions to fortify Pakistan's arbitration landscape.

Resolution of Business Disputes in the Aviation Industry: The Role of Law and Arbitration

The purpose of this study is to explore the legal framework governing dispute resolution, examine the practice of using arbitration, identify the challenges faced, and provide recommendations to improve the effectiveness of business dispute resolution in the aviation industry. Conduct a review of the relevant literature to understand the legal framework governing business dispute resolution in the aviation industry, as well as practices and trends in the use of arbitration. Analyze data obtained from literature studies, case analysis, and, trends, and findings relevant in the context of business dispute resolution in the aviation industry. The role of arbitration law and implementation in the resolution of business disputes in the aviation industry is of significant importance. Law governs operational aspects and handles conflicts, while arbitration offers efficient and transparent solutions. The focus on investment risk prevention, regulatory updates, and negotiation methods demonstrate efforts to improve a conducive business environment. Consumer protection and law enforcement are necessary to ensure fairness for all parties. Thus, efforts to increase the role of arbitration law and implementation can bring great benefits in the aviation industry.

Legitimacy Concerns regarding the Application of Soft Law in International Arbitration in Connection with the Independence and Impartiality of Arbitrators

The growing body of soft law instruments in the field of arbitration may provide us with numerous positive outcomes; however, its application has also gathered a substantial amount of criticism. The present article addresses concerns of legitimacy voiced in today’s arbitral practice and the possible negative consequences of the excessive application of soft law in arbitration. In order to put these concerns into a more concrete perspective, the article discusses these legitimacy questions, focusing on soft law regarding issues of conflicts of interest and the impartiality and independence of arbitrators, and provides the reader with an outlook for the international acceptance and applicability of the International Bar Association’s Guidelines on Conflicts of Interest in International Arbitration.

The Recognition and Enforcement of Foreign Arbitral Awards: The New York Convention and the Afghan Law Perspectives

Aim: The aim of this paper was to evaluate the legal frameworks for recognition and enforcement of foreign arbitral awards in light of the New York Convention and the Afghan Arbitration law.
 Methods: In this research, the library research method was used and in terms of presenting research data and information, it’s a qualitative, descriptive and analytical research module.
 Results: As a party to the New York Convention, Afghanistan has the legal obligation to recognize and enforce foreign arbitral awards in its territory. Similarly, Afghanistan has recently enacted and ratified its law of arbitration which contains recognition and enforcement of arbitral awards. While generally the new law marks some progress, it continues to leave substantive and procedural uncertainty about how courts should recognize and enforce foreign arbitral awards. This uncertainty not only fails to comply with the terms of the New York convention, it also has the potential to discourage both national and foreign investment, ultimately threatening economic growth in Afghanistan. 
 Recommendation: This article recommends that by amending the arbitration law and enacting clear procedural rules upon recognizing, enforcing and executing foreign arbitral awards in light of UNCITRAL Model Law, first, Afghanistan can most likely promote foreign investment which is essential to steady economic growth, and at the same time, it helps Afghanistan to comply with the New York Convention on the recognition and enforcement of foreign arbitral awards.