Arbitration Rules Research Articles

Arbitration Hearing with Remote Participation: Necessary Innovations that Irreversibly Change Traditions

The COVID-19 coronavirus pandemic forced most arbitration centers in countries with a wide variety of legal traditions to switch to mass arbitration hearings in video conferencing mode in the spring of 2020. It turned out that hearings with remote participation of representatives of the parties, and sometimes arbitrators, have a number of advantages compared to regular hearings. A number of new possibilities arises and thus compensates the loss of certain possibilities adherent in physical presence of arbitration participants at hearings. The authors argue that most of the obstacles and shortcomings of the new format as a whole can be overcome with modern regulatory development, law enforcement, software, and hardware tools. The paper examines, among other things, the experience of the Arbitration Center at the Russian Union of Industrialists and Entrepreneurs, whose software and hardware complex and previously modernized arbitration rules made it possible to safely switch to a new mode of operation. New documents of international origin in this area are also being considered, indicating the need to ensure a balance between the effectiveness of arbitration proceedings on the one hand and the right of the parties to due process and fair treatment on the other.The authors conclude that there will not be a complete return to the previous practice with the end of the pandemic. However, a certain part of the meetings, taking into account the circumstances of the disputes, will return offline, the popularity of various mixed (hybrid) options will increase, which will not be difficult to put into practice due to the flexibility of the arbitration procedure. The flexibility of arbitration and the delegation to arbitrators of a number of issues related to the organization and conduct of arbitration proceedings, which require that opinions of the parties should be requested and considered in order to solve the dispute, makes it possible to ensure the optimal “format” of the arbitration procedure given the specific circumstances of the dispute. This procedure provides its participants, among other things, a reasonable and sufficient opportunity to present their positions, ensuring equal treatment of the parties and adversarial while ensuring the real effectiveness of the arbitration procedure, which allows in modern conditions to properly implement the principles on which arbitration is based.

Prima Facie Decisions on Jurisdiction under the UNCITRAL Arbitration Rules:The Experience of the Permanent Court of Arbitration

Prima Facie Decisions on Jurisdiction under the UNCITRAL Arbitration Rules:The Experience of the Permanent Court of Arbitration

Early Disposition Mechanisms in the ICDR and AAA Commercial Arbitration Rules

Early Disposition Mechanisms in the ICDR and AAA Commercial Arbitration Rules

Summary Procedure under the SCC Arbitration Rules

Summary Procedure under the SCC Arbitration Rules

Early Dismissal of Claims under the 2020 LCIA Arbitration Rules

Early Dismissal of Claims under the 2020 LCIA Arbitration Rules

The Legal Policy of Executability in the International Arbitral Tribunal Decision for Settlement of Investment Disputes

<div><table cellspacing="0" cellpadding="0" align="left"><tbody><tr><td align="left" valign="top"><p class="AbstractText">The growing number of investment disputes indicates more challenging and controversial matters in the various arbitration practices. However, the International Centre for the Settlement of Investment Disputes (ICSID) rules do not entirely solve the problem in the arbitration process. This study aims to explain how the ICSID tribunal’s inherent reconsideration power can be exercised to “fill the gap” in arbitration proceedings. This study concludes that it can be enforced under Article 44 of the ICSID Convention, which decides the question submitted to the tribunal that the ICSID Convention does not cover. Second, in completing this study, the wording of Rules 19 of Arbitration Rules gives an almost similar order to the tribunals in the case of absence in the conduct of proceedings. Third, under Rule 38 (2) Arbitration Rules, the tribunals can exercise the reconsideration power when discovering new facts that decisively affect the case's outcome.</p></td></tr></tbody></table></div>

Fundamental Changes Introduced by the New Swiss Rules of Mediation After the 2019 Revision – New Regulations Compatible with Singapore Convention on Mediation

Mediation, as an alternative dispute resolution method, is widely preferred by parties with disputes in many countries. For this reason, in relation to alternative dispute resolution methods including mediation, both in Anglo-American Law and in Continental European Law, various technical and legal arrangements have been made. In Swiss Law, mediation gained legal ground when the Swiss Federal Code of Civil Procedure Law became effective on the 1st of January, 2011. Accordingly, in Switzerland mediation takes place as per articles 213 to 218 of the Federal Swiss Civil Procedures law. While developments related to Ad Hoc mediation were specified in Swiss law, mediation rules were also foreseen at the various Instituonal arbitration centers. Accordingly, the Swiss Chambers’ Arbitration Institution accepted mediation rules for the first time in addition to the arbitration rules in 2007. In this way, the Swiss Rules of Commercial Mediation, arranged by the Swiss Chambers were provided for those making applications in the year 2007. Furthermore, on the 1st of July 2019, the Swiss Chambers’ Arbitration Institution revised the Swiss Rules of Commercial Mediation, which they accepted in 2007. Hence, the Swiss Rules of Mediation which were revised as of the 1st of July 2019, replaced the Swiss Commercial Mediation Rules of year 2007. In the revision of the Swiss Rules of Mediation on the 1st of July 2019, developments related to the UNCITRAL United Nations Convention on International Settlement Agreements Resulting from Mediation approved on the 25th of June, 2018 have become effective. Following the 2019 revision, the Swiss Rules of Mediation have become one of the regulations bringing out rules that are in conformity with the developments foreseen in the Singapore Convention on Mediation. In our study, the aim was to reveal the fundamental changes brought up with the application of the Swiss Rules of Mediation since the 1st of July 2019.

Efficient Arb-Med-Arb Proceedings: Should the Arbitrator also be the Mediator?

The demand for hybrid proceedings combining elements of arbitration proceedings and mediation is growing continuously. The reason for this is the parties’ desire to make dispute resolution more efficient. A special type of hybrid proceedings are ‘arb-med-arb’ proceedings. These proceedings involve first initiating traditional arbitration proceedings. Before the taking of evidence begins, an attempt is then made to settle the dispute outside the arbitration proceedings in a separate mediation procedure. If the mediation fails, the arbitration proceedings are recommenced, and an arbitral award is issued. In the majority of arb-med-arb proceedings, a third party not involved in the arbitration proceedings is appointed as mediator. However, sometimes the parties ask the sole arbitrator or a member of the arbitral tribunal to act as mediator. This identity of the mediator and the (former and later) arbitrator raises many difficult questions, in particular, when the mediation fails. This article first analyses the pertinent most important regulations worldwide in arbitration and mediation laws, institutional arbitration, and mediation rules, and in soft law. Based on the results of this analysis, the authors develop some practical recommendations for the stakeholders in arb-med-arb proceedings. Arb-med-arb, Arbitrator, Mediator, Hybrid proceedings, Arbitration, Mediation, Same neutral, Declaration of consent, Ex parte communication, Caucusing

Virtual Arbitration Hearings: the New Normal?

This paper addresses the notion and legal framework for virtual hearings in international arbitration. The authors first examine the existing laws in different jurisdictions and how they tackle the issue both when it comes to litigation and when it comes to arbitration, followed by analyses of various institutional arbitration rules, including recent changes thereof and pertinent case law on the matter. They further examine the general idea of a virtual setting for the hearing against legal and technical objections frequently encountered in practice. In particular, the interplay of technical capabilities and legal standards such as “due process” and the “right to present one’s case” is assessed. Finally, the authors identify possible pathways to replacing the classical in-person hearing with the virtual one and the key legal and practical considerations to be assessed before deciding to proceed with it.

A Study on Preliminary Objections of ICSID Arbitration Rule 41(5)

중재합의는 분쟁발생 전후에 할 수 있다. 사전 중재합의는 계약에 중재조항을 포함하고, 사후 중재합의는 분쟁발생 후에 중재계약 방식으로 한다. 사후 중재합의는 중재지, 중재기관 및 준거법 등에서 당사자 간 유리한 선택의 이해관계 때문에 현실적으로 어렵다. 투자자-국가간 분쟁해결 제도에서 선택할 수 있는 ICSID협약중재는 사전에 중재합의를 국제투자협정에 위임한다. ISDS에서 투자자의 일방적 중재신청이 가능한 것을 ‘당사자성 흠결 중재’라는 성격에 기인한다. IIA당사자의 중재절차에 대한 ‘포괄적 제안’을 투자자가 중재신청으로 ‘수락’하는 것이다. 일방적 중재신청은 투자의 실효적 보호수단을 확보, 수용국의 투자촉진 그리고 국가간 분쟁회피라는 정책적 고려에 의하여 설계되었다. 일방적 중재신청은 IIA조항 해석문제, 중재신청의 광범위성, 조약회피 등과 같은 절차남용 그리고 중재포럼의 다양성과 같은 문제점이 있다. ISDS관할권은 IIA혹은 ICSID협약 등과 같은 관련 국제법에 준거하므로 규범충돌의 문제도 존재한다. 이러한 이유로 수용국은 투자자의 중재신청에 대하여 다음과 같은 항변을 한다. 첫째, ‘관할권 항변’을 한다. IIA에서 ICSID중재절차를 예정되어 있는 경우에도, ICSID협약 제25조를 충족하여야 한다. 둘째, 중재신청에 대한 ‘접수항변’으로 신청형식, 절차 미준수, 원고적격 또는 국내구제 미완료 등을 충족하지 못하는 경우이다. 셋째, ｢ICSID중재절차규칙｣제41(5)조에 근거한 예비항변을 한다. 중재신청이 ‘명백하게 법적근거를 흠결’을 이유로 하는 신속절차이다. 예비항변 제도는 2006년 ICISID중재규칙의 개정으로 도입되었다. 투자자의 남소로부터 수용국 보호와 ISDS중재제도 본래의 기능을 강화하기 위한 목적이 있었다. ICSID중재규칙 제41(5)조는 절차의 중요성을 강조하여, 약식절차, 약식각하 그리고 약식판결 등으로 표현한다. 이는 미국 민사절차에서 신속절차중의 약식판결에 근거하고 있다. 이 제도의 목적은 ‘법적 근거가 없는 중재’, ‘승소 확률이 없는 중재’ 그리고 ‘근거없는 중재’를 제한하는데 있다. 예비항변은 2006년 이후 현재 약 40건이 제기되었다. 그 중에서 수용국의 항변을 인정하는 경우는 약 7건에 불과하다. ICSID중재규칙 제41(5)조에 근거한 예비항변에 대한 선도 사례인 Trans-Global v. Jordan의 중재판정부는 중재규칙 제41(5)조의 조문해석을 확립하였고, 많은 중재판정은 이 사례를 인용한다. ICSID예비항변 제도는 그 동안 나타난 문제점 등을 고려하여, 현재 개정작업을 진행 중이다. 2018년 ICSID사무국은 제1차 개정 초안을 발표하였다. 그리고 제1차 개정초안에 대한 의견을 고려하여, 2019년에 제2차 개정초안이 공표되었다.

Hukum International Sebagai Lex Causae oleh Badan Arbitrase Komersial Internasional

This article discusses whether international law may be applied as lex causae by arbitral body. The international instrument used as comparative study are the Model Arbitration Law 1985, UNCITRAL Arbitration RUles, the ICC Rules of Arbitration the ICSID Convention and the Indonesian National Law on Arbitration. The article suggest that although international law seems inappropriate to deal with commercial matters, in certain circumstances, it is possible.

UNCITRAL Model Law & Arbitration Rules: The Arbitration Act 2005 (Amended 2011 & 2018) and the AIAC Arbitration Rules 2018, by Sundra Rajoo

The UNCITRAL Model Law on International Commercial Arbitration and the UNCITRAL Arbitration Rules have been key players in the establishment of a harmonized arbitration system worldwide. As Alexis Mourre enthusiastically articulates in the Foreword of this book: ‘Of course, the law and practice of international arbitration would not be what it is without the Model Law!’ Today, legislation based on the UNCITRAL Model Law has been adopted in 83 States, in a total of 116 jurisdictions.1 Twenty-six arbitration centres have based their Arbitration Rules on, or have been inspired by, the UNCITRAL Arbitration Rules, 34 arbitration centres administer arbitral proceedings under the UNCITRAL Arbitration Rules or provide some administrative services under the said Rules, and 55 arbitration centres act as an appointing authority under these Rules.2 Against this background, Sundra Rajoo wrote the UNCITRAL Model Law & Arbitration Rules: The Arbitration Act 2005 (Amended 2011 & 2018) and...

Editors’ Note

Are dedicated international financial tribunals like buses? To paraphrase the familiar saying, you wait ages for one—and then three (or even nine!) come along at roughly the same time. ‘Mind the gap’, it was suggested in an article published in these pages more than a dozen years ago.1 World trade had a specialized tribunal then. Most domestic court systems offered specialized dispute settlement for everything from juvenile crime and family law to immigration and employment cases. Why not finance?2 To plug the hole, and against the backdrop of the global financial crisis, an initiative involving many of this Journal’s editorial board members led to the establishment of P.R.I.M.E. Finance in The Hague in the Netherlands. P.R.I.M.E. opened its doors in 2012, offering an arbitration function dedicated to financial market cases, with its own international panel of recognized legal and market experts in finance and arbitration rules adapted to...

Threading the Sovereign’s Needle

Abstract An investor-State tribunal enjoys significant authority once a dispute is referred to it. Among a tribunal’s unquestioned powers is the power to order interim relief—including with respect to the most sovereign of a State’s conduct: its enforcement of its criminal law. In exercising these powers, an investor-State tribunal goes beyond the role traditionally assigned to it—i.e. to award damages for prejudice caused by a treaty breach—and dictates sovereign conduct. While the applicable treaty, arbitral rules, or law of the seat may not offer specific instructions, arbitral tribunals deciding on such interim relief requests can rely on a significant body of case law. That case law reflects a coherent approach to a thorny question, even though outcomes may vary. This article will deconstruct that coherent approach—from the foundations of the tribunal’s authority to order interim relief in respect to pendant criminal proceedings, to the rights that such relief may protect, to the requirements for ordering such relief, as well the effect of such relief and its duration in addition to any recourse for non-compliance.

An Arbitrary Approach to Insurance Claims with an Emphasis on Judicial Procedure (Compulsory Third Party Liability Insurance for Motor Vehicle Accidents)

The expansion of arbitration rules and the increase in number of claims in insurance disputes have magnified the need for the acceptance of arbitration in this area more than ever. Although different prohibitions and limitations exist, the acceptance of the general principle of arbitrability reinforces the mindset where arbitration is allowed in insurance claims. Despite this, the legislator has not explicitly mentioned arbitration in the law on compulsory third party liability insurance for motor vehicle accidents, and this silence and the existence of certain rules, has led to doubts about the acceptance of arbitration in such claims. Reservations regarding the issues that may arise in public order due to arbitration, the failure to mention arbitration in the provisions of the Compulsory Insurance Law, and the vagueness of some of the provisions of the law have led to the ambiguity of the arbitrability of insurance claims. Nevertheless, these doubts can be resolved if a clear distinction between civil liability and criminal liability insurance coverage is placed. Once this happens, there is no obstacle stopping the acceptance of arbitration. In this study, the descriptive and analytical method was employed. Furthermore, the legal limitations and prohibitions in referring insurance claims to arbitration, and the advantages and disadvantages of accepting arbitration, have been analyzed.

Legal Reasoning Across Commercial Disputes

Legal reasoning lies at the heart of the interpretation of the facts, it determines the application of law to the facts or the award of compensation as a result of a finding of liability, and it is of the utmost importance. Laws, court statutes, and arbitration rules require that judgments and awards be reasoned, so that the losing party, as well as every other reader, may be able to follow the reasoning of the adjudicator and understand the decision reached. Yet, legal reasoning is highly individualistic and different judges and arbitrators can decide similar or the same issues in variegated manners. The nagging questions then emerge: how do judges and arbitrators reason and why do they do so? In particular, do arbitrators reason differently than judges and should preference be given to arbitration over a court system, or vice-versa? Do domestic judges and arbitrators decide differently than international judges and arbitrators? Do common law judges and arbitrators reason differently than civil law judges and arbitrators and, to the extent that parties can make appointments, who should they choose? These are important questions that can impact the desirability of one type of dispute settlement over another, the selection and appointment of an arbitrator in a dispute, or the way legal counsel formulate arguments. In order to make sense of the process by which a judge or arbitrator reasons and ultimately decides, and why he or she reasons the way they do, some legal scholars have taken the challenging path of pushing beyond the boundaries of pure legal analysis to engage in interdisciplinary research and study the empirical data that helps explain the process of legal reasoning. Professor SI Strong’s book Legal Reasoning Across Commercial Disputes is unique in this respect, for its innovativeness, robust methodology, the quantitative data it presents, and its qualitative analysis and outcomes.

A brain-actuated robotic arm system using non-invasive hybrid brain–computer interface and shared control strategy

Objective. The electroencephalography (EEG)-based brain–computer interfaces (BCIs) have been used in the control of robotic arms. The performance of non-invasive BCIs may not be satisfactory due to the poor quality of EEG signals, so the shared control strategies were tried as an alternative solution. However, most of the existing shared control methods set the arbitration rules manually, which highly depended on the specific tasks and developer’s experience. In this study, we proposed a novel shared control model that automatically optimized the control commands in a dynamical way based on the context in real-time control. Besides, we employed the hybrid BCI to better allocate commands with multiple functions. The system allowed non-invasive BCI users to manipulate a robotic arm moving in a three-dimensional (3D) space and complete a pick-place task of multiple objects. Approach. Taking the scene information obtained by computer vision as a knowledge base, a machine agent was designed to infer the user’s intention and generate automatic commands. Based on the inference confidence and user’s characteristic, the proposed shared control model fused the machine autonomy and human intention dynamically for robotic arm motion optimization during the online control. In addition, we introduced a hybrid BCI scheme that applied steady-state visual evoked potentials and motor imagery to the divided primary and secondary BCI interfaces to better allocate the BCI resources (e.g. decoding computing power, screen occupation) and realize the multi-dimensional control of the robotic arm. Main results. Eleven subjects participated in the online experiments of picking and placing five objects that scattered at different positions in a 3D workspace. The results showed that most of the subjects could control the robotic arm to complete accurate and robust picking task with an average success rate of approximately 85% under the shared control strategy, while the average success rate of placing task controlled by pure BCI was 50% approximately. Significance. In this paper, we proposed a novel shared controller for motion automatic optimization, together with a hybrid BCI control scheme that allocated paradigms according to the importance of commands to realize multi-dimensional and effective control of a robotic arm. Our study indicated that the shared control strategy with hybrid BCI could greatly improve the performance of the brain-actuated robotic arm system.

Dual Nationality of a Private Investor in Investment Treaty Arbitration: A Potential Barrier to the Exercise of Jurisdiction Ratione Personae?

Abstract One of the fundamental objectives of international investment agreements (IIAs) is to protect the rights and interests of foreign investors in the territory of a contracting State. Why, then, have tribunals often exercised jurisdiction ratione personae over the claims of dual nationals against their own State? The answer lies in the silence of IIAs on the matter of dual nationals. Such agreements have failed expressly to mention dual nationals in their definitions of ‘investor’ or ‘national’, which has created lacunae that are open to interpretation. Tribunals have often fallen back on international law to fill these gaps and accurately to determine the nationality of an investor’s claims. They have taken into consideration the text of the IIAs, the text of institutional rules and the general principles of international law. The principle of ‘dominant and effective nationality’, as propounded in the Nottebohm case, has made frequent appearances in such interpretation processes. However, the application of this principle has been inconsistent over time, with different tribunals taking different stances. In this article, the author traces this varied approaches of tribunals. In doing so, he analyses the text of and the awards delivered in disputes arising out of the Algiers Declaration, the North American Free Trade Agreement (NAFTA), the United States–Mexico–Canada Agreement (USMCA), the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), the Dominican Republic–Central America Free Trade Agreement (DR-CAFTA), the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules and various bilateral investment treaties (BITs). Based on this analysis, the author proposes several changes that States should consider in the future negotiation of BITs to restrict a claim by a dual national against its State of nationality.

Analisis Hukum Pelaksanaan Penyelesaian Sengketa Bisnis Dengan Metode Arbitrase Online di Indonesia dan di Singapura

Online arbitration has been carried out by the Singapore International Arbitration Center (SIAC), then SIAC Rules, Arbitration Act of Singapore, and UNCITRAL as a legal basis SIAC already has rules regarding online arbitration. The Indonesian National Arbitration Board (BANI) has practically carried out online arbitration, but the BANI Arbitration Rules & Procedures and Law No.30 of 1999 as the legal basis for BANI do not have clear rules. This writing will discuss the comparison of online arbitration enforcement at SIAC with BANI, how SIAC regulates online arbitration execution and whether it can be adopted for online arbitration arrangements at BANI. This research was conducted using a normative juridical method. The approach used is legislation and comparison. The results of the comparative research on the implementation of online arbitration at SIAC and BANI show that SIAC already has rules that clearly regulate the implementation of online arbitration from arbitration registration, hearings, to online arbitration awards. In the implementation of online arbitration at BANI, BANI online arbitration registration is possible because it has the rules, but in the subsequent process of online examination hearings, and online arbitration awards do not yet have rules that regulate explicitly and clearly. Online arbitration arrangements at SIAC can be adopted into online arbitration procedure law by BANI and the Indonesian Arbitration Law because they do not conflict with other laws in Indonesia.

Распространение арбитражной оговорки на не подписавшие ее стороны: уроки сравнительного права

Introduction: is it possible for a legal entity or individual who has not signed a contract containing the arbitration clause to take precedence of initiating arbitration against the signatory legal entity or individual, or vice versa, to be involved in the legal proceedings by other persons? The paper discusses this issue and examines it from the point of view of several theories, within the framework of comparative law, accepted for the extension of the arbitration clause to non-signatories. The purpose of the research is achieved by solving a number of tasks: to identify recurrent cases when an arbitration agreement was extended to a party that did not formally sign any arbitration agreement; to analyze the scenarios where such extension was accepted in different jurisdictions, as well as the facts and legal basis for this. Methodology: the paper uses a comparative method of analyzing the legal framework and court decisions, and the arbitral awards from different jurisdictions allow us to understand the degree of acceptability of the theories related to the extension of the arbitration clause to non-signatories. The results of the research can be used to determine the key circumstances of arbitration – whether the non-signatory party can be included in the arbitration either being initiated or already commenced. Conclusions: although there are various legal theories that have created a number of possibilities for extending the arbitration clause, such theories have a greater or lesser degree of acceptance depending on the arbitration law adopted by each country, the agreement of the parties, the arbitration rules chosen by the parties, the applicable law to the contract and, in some cases, the arbitration law at the legal venue. In addition, it will be necessary to analyze whether the non-signatory party is actually a party to the arbitration agreement, the relationship on the merits of the dispute, the interest and participation in the performance of the contract, and the application of the principle of good faith.