Arbitration System Research Articles

Labour in the Technocratic Frame: Macroeconomic Policy and Wages in 1950s Australia

Though the labour market has always been central to macroeconomics, policy has usually had no instrument for intervening directly in the wage-setting process. But in the mid-twentieth century, economists commonly believed that there should be such an instrument. In 1950s Australia, it seemed that the arbitration system could potentially be used as such. This article uses Trevor Swan’s contemporary model of Australian policy in the 1950s to understand the tensions facing policy and explain why wage control seemed to be a solution. The arbitration judges began to consider macroeconomics in their decisions, and the unions adapted by presenting macroeconomic arguments of their own. In full employment conditions, labour had considerable economic power outside the tribunal, and the limitations of arbitration as an instrument of policy raised the shadow of unemployment as an alternative disciplining device.

Multiprocessor Arbitration for AMBA Interface in ASIC

This paper addresses the multiprocessor arbitration for any System on Chip or ASIC. Any system, be it a simple controller or a very supplicated system, it needs a processor to operate. There are series of processors offered by Intel, AMD or processor companies. The previously single processor was used for any chop to access different targets. But technology advances, the industry felt the need for multiprocessor access for higher performance. To allow multiprocessor to access its targets, the system needs an efficient interface with a very sophisticated arbitration system. This paper researched to develop an improved hardware algorithm to allow multiprocessor access to the system. To design the hardware, a modern HDL based design methodology has been used. There are two industry-standard HDL by IEEE – VHDL and Verilog. Here Verilog is used. In HDL based d=hardware development, simulation is the most important part to verify the design’s functionality and make sure it is 100% correct. Otherwise, if any design problem goes forward undetected, that’ll cost so much money and time to go back and fix, in some cases, full respin. For hardware implementation, Xilinx FPGA Device has been targeted in this research. AMBA bus protocol used in this research is the industry-standard protocol for processor access and is very efficient and straightforward to use with any off the shelf macro available for the high-tech industry.

From Lena Goldfields to Crystallex: A Proposal For Collective Financing Of Sovereign Award Debt

Abstract The Lena Goldfields payment story must be recognized for upholding a critical principle: the notion that an arbitral award debt is a collective problem between sovereigns. The stories of payment in Lena Goldfields and Crystallex lead to the following inquiry: why should today’s system of investment treaty arbitration, based upon treaties providing for reciprocal obligations between sovereigns, treat the payment of arbitral awards as a one-sided obligation of only one sovereign, to be borne alone? If sovereigns are able to enter into treaties providing for mutual protections and benefits, including the mutual consent to arbitrate future investment disputes with foreign investors, why should they not also be able to collectively insure the future payment of awards owed to foreign investors in the future?

Reforming the Legislation on the International Commercial Arbitration of Ukraine: Realities or Myths

International commercial arbitration (ICA) is an alternative way to resolve foreign economic disputes. Initially, arbitration itself was seen as a neutral court in which the parties to the dispute were independent of national courts. Arbitration agreements and decisions must be recognised by national courts without any complications or review procedures. Although granting commercial parties some independence to agree that their dispute will be considered by independent arbitrators is a key principle in ICA, the struggle for supremacy between national laws and national courts on the one hand and the autonomy of the parties and the independence of the international arbitration system on the other continue. Over the years, national laws have sought to control, regulate, interfere with, or support ICA in various ways. To counter attempts to ‘localise’ ICA and promote equality in this area, private, professional institutions and international and intergovernmental organisations have developed a significant body of law designed to ensure self-government and dispute settlement procedures in ICA. Nevertheless, international commercial arbitration cannot exist independently of national jurisdictions. Examining the activities of ICA, it can be seen that the importance and impact of national arbitration laws and national judicial supervision are significantly reduced, but the lex fori still plays an important role in arbitration. Thus, the reform of the normative regulation of international arbitration also affected Ukraine. The article analyses the radical changes proposed by the legislator regarding the procedure for establishing institutional arbitrations, expanding the arbitrability of disputes.

Coalminers, Arbitration and the Workplace

Historians who have asked "why it was the Australasian colonies opted to introduce a compulsory element into their dispute solving mechanisms have given broadly similar answer. Compulsion resulted from the conjunction of a particular stage of union development, a heightened predisposition towards what might be called liberal rationality or a belief in the possibility of resolving clashes of interest by negotiation. Commonly enough historians have also tended to concentrate upon the leadership or sponsorship of a particular individual. Thus the persistent advocacy of William Pember Reeves in New Zealand, C C Kingston in South Australia and B R Wise in New South Wales is often seen as critical to winning acceptance for the legislation. There is much to commend this general explanation for the adoption of a compulsory system of arbitration through out Australasia. It is an historical framework which Jim Holts Compulsory' arbitration in New Zealand endorses. It is when he turns to examine the evolution of the system that he widens our perspective. He stresses the subtle interplay between employers and unions, politicians and administrators and the Arbitration Court itself as each sought to respond to changing circumstances.

Who Wins in International Investment Arbitration Disputes? Evidence from Latin American and Caribbean Countries’ Cases under ICSID

During the nineties, an important group of Latin American and Caribbean (LAC) countries adhered to the International Center for Settlement of Investment Disputes (ICSID) as part of a programme of measures that sought to attract foreign investment to the region. With the aim of exploring the determinants of arbitration outcomes, I use a dataset of 161 concluded disputes until 2019 corresponding to investments in LAC countries, finding evidence on the influence of parties’ characteristics, the subject discussed in cases, and characteristics of the tribunal on the arbitration outcomes. I find that 50% of tribunal decisions have been favourable to either claimant investors or host countries. However, this result may be subject to sample bias if information of settlements and discontinued cases is not taken into consideration. I also find evidence in favour of selection and party capability theories that helps to explain the determinants of international investment arbitration dispute outcomes. In particular, the results reveal that disputes related to direct expropriations have a relatively higher probability of being considered founded by tribunals than other legal controversies. Likewise, the indicators of the relative strength of parties, such as experience in the international arbitration system, have an important influence on tribunal awards. Furthermore, country’s time of experience within ICSID is found to have an important influence on the selection of disputes.

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...

Informed Consent in Transfusion Medicine: An Ethical Obligation Or a Legal Compulsion to Avert Liabilities for Negligence to the Health Care Provider

Blood transfusion is oftentimes life-saving but associated with risks which ought to be disclosed by the health care provider as an ethical obligation and legal requirement. The practice of informed consent to transfusion medicine is quite new and few studies have comprehensively x-rayed its historical, ethical and legal implications with an in depth consideration of professional negligence using decided cases by the adversarial and arbitration systems. PubMed, PubMed Central, Google Scholar, African Journal on Line (AJOL) electronic databases were searched using combined keywords like; “Blood transfusion and informed consent” “informed choice to transfusion medicine practice”, “consent in transfusion medicine”, “health care giver and consent to transfusion therapy”, “transfusion consent and the health care seeker”, “liability and informed consent to transfusion” and “contemporary issues in medical negligence”. Relatedly, printed materials were considered. The 91 studies that met the inclusion criteria were considered with highlights showing that, informed consent to medical treatment generally is an age long practice running from roman civilization to the present but its advocated practice in transfusion medicine a recent event. The practice is also generally low in comparison with informed consent taken for other treatments in similar settings. The consequences of dereliction including infamous conduct amongst professionals or negligence with direct and vicarious liabilities in adversary systems has been set in precedent judgments. These in addition to the present day patient-centered care model as global best practice and quality in health care delivery is compelling for health care providers to imbibe the practice not as a form of defensive medicine but a repertoire to quality and responsive Medicare service.

Challenges in the management of small-scale marine fisheries conflicts in Ghana

Marine fisheries play important socio-economic roles in Ghana including the provision of food, livelihoods, employment, income generation and poverty reduction. Small-scale fisheries in Ghana face many management challenges such as overfished stocks, and user conflicts which can threaten resource sustainability and social stability. Previous research on conflict management in Ghanaian fisheries in 2001, gave a view of conflicts at that time. Since then, the institutional arrangements for fisheries management have developed, but there have also been other pressures from overfishing, population growth and the development of a national oil industry. This paper identifies previous studies and conducts participatory research interviews with a range of stakeholders to determine current fishery conflicts, their causes, consequences and their management. Different types of conflicts were identified which include, spatial, fishing gear, resource competition, and a range of governance and inter-agency conflicts. Conflicts among fishers have negative impacts on economic and social development. Unfortunately, the decline in fish production due to overfishing precipitates some of the conflict issues. It is concluded that fisheries governance of the small-scale fisheries sector can be enhanced, if fish production declines are addressed, open access canoe fisheries are restricted, management of pre-mix fuel administration and distribution improved, with the subsidy on the commodity being gradually removed. Fishery regulations can be enhanced, fisheries arbitration systems strengthened and fishers made more aware of fisheries laws through education via co-management. However, given the extensive changes envisaged and the time required to reduce levels of fishing effort, it is essential that co-management governance structures and relations among small-scale fishers keep improving, so as to contain the level of conflict in Ghana's fisheries in the transition to more sustainable fishing and food security.

Analysis of the Recent Commercial Arbitration Development Plan of the Korean Government – Some Suggestions for Vietnam’s Arbitration Law and Policy

Abstract The settlement of commercial disputes by commercial arbitration is gradually becoming popular in the business community. In the course of economic integration, Vietnam has acknowledged the role of arbitration and attempted to develop its arbitration legal framework in compliance with international practices. However, Vietnam’s arbitration system still faces various issues and thus, has required further reform. There are often cancellations of the referee’s decision, the procedure to cancel the award often lacks clarity, and the venue for the arbitration center’s dispute to be resolved is limited. In addition, the management, quality assessment and training of arbitrators is one of Vietnam’s problems. In Asia, Korea is known as one of the most pro-arbitration jurisdictions in the region. Since the adoption of the Arbitration Act in 1966 that governs both domestic and international proceedings, the Korean arbitration legal framework has always been kept consistent with generally accepted international practices. Recently, the Korean government has introduced an action plan to further promote the robust development of the commercial arbitration industry over the five-year period, from 2019 to 2023, and the goal is to turn Korea into one of five countries that have the world’s best arbitration system. Given the close cultural background and integration strategy of Vietnam and Korea, it is believed that the Korean experience can serve as a good reference for Vietnam in developing commercial arbitration law and policy. This paper begins with analyzing the background of the Vietnamese arbitration system and highlighting some limitations of Vietnamese arbitration. It then switches to the Korean arbitration system and development plan on promotion of dispute settlement by arbitration. The paper focuses on analyzing four main strategies that would: (1) strengthen the foundation of the arbitration industry; (2) activate domestic arbitration; (3) secure competitiveness in the arbitration industry; (4) expand the attraction of international arbitration. The Korean action plan can suggest some interesting strategies for Vietnam to further strengthen its commercial arbitration system.

Regulating On-demand Work in China: Just Getting Started?

Abstract In China, a significant and rising number of workers are engaged in on-demand work. The legal status of on-demand workers has been widely debated, and it seems that the vast majority are not protected by labour law, since the law accords rights only to those workers with ‘labour relationships’. While there is widespread consensus in China that on-demand workers need more protection, steps taken in that direction to date have been small indeed. This paper seeks to explain the current legal situation of Chinese on-demand workers by outlining the responses to the spread of on-demand work of the judicial and arbitration system, national government, trade unions and workers themselves. Addressing the question why on-demand workers have not yet been accorded labour protections, it points in particular to the national government’s concern to maintain high levels of employment and ensure economic growth.

Attribution in International Law and Arbitration

Carlo de Stefano’s recent book, Attribution in International Law and Arbitration, deals with the ever-relevant issue of attribution in international law, with a particular focus on international investment arbitration.2 Aspects of public international law such as State responsibility and attribution can hardly be considered new or unexplored; however, these topics have become particularly important in the era of investment arbitration.3 In this sense, this book represents a much-needed comprehensive and contemporary monograph on the topic of attribution in investment arbitration. De Stefano’s book consists of two main parts: the first dealing with attribution in public international law generally (chapter II), and the second addressing attribution in the particular system of international investment arbitration (chapter III). Through this approach, and by moving from general to more specific analysis, de Stefano examines, first and foremost, whether the general rules of attribution are in principle applicable in investment arbitration. Secondly,...

Attempting—and Failing—to Balance Fairness and Efficiency in the Arbitral System

The Supreme Court has actively expanded the Federal Arbitration Act into realms not originally contemplated by Congress. This harms consumers who are parties to pre-dispute, binding arbitration agreements. If consumers sign a contract containing an arbitration agreement, they may be required to arbitrate everything within the agreement’s scope, including their statutory rights. Simultaneously, the Court has restricted class action arbitration—a device on which consumers have relied when they are forced to arbitrate. The Court’s expansion of arbitration and restriction of class action arbitration has led many to distrust and advocate for changing the arbitral system. Arbitration institutions have directly reacted to the concerns about arbitration by promulgating more rules, procedures, and safeguards to make arbitration fairer for consumers. However, adding rules and procedures is probably not enough to make arbitration proceedings truly fair, and doing so creates a system that is so court-like that arbitration loses its chief benefits—affordability and efficiency. Thus, if the Court continues with its expansive arbitration jurisprudence and its anti-class action arbitration jurisprudence, institutional reaction is an unlikely solution to address arbitration’s fairness concerns.

نشأة التحکیم وتطوره التاریخی

کان اللجوء إلى الإنتقام الفردي أو الجماعي سائدا قبل الإسلام إلا أن نظام التحکيم عرف عند العرب وغير العرب، إذ يعتبر ذلک مرحلة راقية وصلت إليها الجماعات البشرية. ولم يکن التحکيم ملزما للمحکم، فإن شاء قبل أن يقوم بهذه المهمة وإن شاء أبى، وليس لأحد حق أن يجبره على هذه المهمة، وکان لابد من اتفاق الطرفين للحضور أمام المحکم وليس لأحدهما الحق في إجبار الآخر على المخاصمة والحضور أمام المحکم ولا عبرة للتحکيم إلا إذا رضي به الخصمان کلاهما وحضر کل منهما بإختياره إلى المحکم. ويعتبر التحکيم أعلى مراحل التطور الذي وصلت إليه الجماعات الفطرية، وقد إستقرت فکرة التحکيم في أذهان الناس وألفوا الإلتجاء إليها، حتى أصبحت عادة أصلية في نفوسهم. ومع ذلک کان الإلتجاء إلى التحکيم اختياريا، وتنفيذ الحکم الصادر متروک أمره إلى المتنازعين. The resort to individual or collective revenge was prevalent before Islam, but the arbitration system was known to Arabs and non-Arabs, as this is considered a high stage that human groups have reached. The arbitration was not binding on the arbitrator, and if he wanted, he accepted that he would perform this task and if he refused, and no one has the right to force him to this task, and the two parties had to agree to appear before the arbitrator, and neither of them has the right to force the other to litigate and appear before the arbitrator. Both opponents agreed with him and each of them attended by his choice to the arbitrator. Arbitration is considered the highest stage of development that the innate groups have reached, and the idea of ​​arbitration has settled in the minds of people and they have resorted to it, until it has become an original habit in them. However, recourse to arbitration was optional, and the implementation of the judgment issued is left to the disputants.

النظام العام وأثره على مدى توافق حکم التحکیم مع الأسس العامة للعقود الإداریة

يعتبر اللجوء الى التحکيم لفض المنازعات العقدية من الامور المسلم بها في وقتنا الحالي نظرا للمميزات التي يتمتع بها النظام القانوني للتحکيم، ومع تطور دور الدولة وانتقالها من الدولة الحارسة الى الدولة المتدخلة جعل منها طرفا في عقود التجارة الدولية وعقد الأستثمار ووعقود استغلال الموارد الطبيعية، وبطبيعة الحال فأن الجهات الأجنبية المتعاقدة مع الدولة تشترط فض المنازعات من خلال الجوء الى التحکيم لاتمام العقد. الا ان للعقود الإدارية طابعها الخاص، حيث تکون الجهة الإدارية المتعاقدة في مرتبة اعلى من المتعاقد معها وتتمتع بسلطات لا وجود لها في القانون الخاص، کما ان العقود الإدارية ترتبط بقواعد القانون الإداري والذي تعتبر جميع قواعده من قواعد النظام العام التي لا يمکن مخالفتها او تجاوزها، لذلک تظهر لدينا مشکلة تتعلق بتعارض اللجوء الى التحکيم مع النظام القانوني للعقود الإدارية وکيفية التوفيق بينها. لذلک سيقوم الباحث بتوضيح أث النظام العام على حکم التحکيم مع الأسس العامة للعقود الإدارية، حيث ينقسم هذا البحث الى مطلبين: إحداهما نتحدث فيه عن الأسس العامة للعقود الإدارية، والثاني نتحدث فيه مدى تعارض اللجوء للتحکيم مع النظام القانوني للعقود الإدارية والحلول المقترحة. Resorting to arbitration to settle contractual disputes is a recognized issue in our time due to the advantages enjoyed by the legal system of arbitration, With the development of the state’s role and its transfer from the guardian state to the intervening state, it was made a party to international trade contracts, investment contracts and contracts for the exploitation of natural resources, Of course, foreign parties contracting with the state stipulate the settlement of disputes through resorting to arbitration to complete the contract. However, administrative contracts have their own character, whereby the contracting administrative authority is at a higher rank than the contracting party and has powers that do not exist in private law, Also, administrative contracts are related to the rules of administrative law, all of which are considered public order rules that cannot be violated or transgressed. Therefore, we have a problem related to the conflict of resorting to arbitration with the legal system of administrative contracts and how to reconcile them. Therefore, the researcher will clarify the effect of the public order on the arbitration award along with the general foundations of administrative contracts, as this research is divided into two requirements: one of which we talk about the general foundations of administrative contracts, and the second we talk about the extent to which resorting to arbitration conflicts with the legal system of administrative contracts and the proposed solutions.

Arbitrator teams and dispute resolution performance: an empirical analysis

In the context of international investment disputes, this paper investigates how arbitrator team characteristics affect team performance in solving disputes between a host country and a foreign investor. Our data include 277 judgments issued by arbitrator teams at the International Centre for Settlement of Investment Disputes at the World Bank from 1972 to 2018. The time to resolution and the quality of the final judgment, as measured by the requirement of a follow-on proceeding to rectify mistakes, are used to measure the team performance. We consider both biographical and professional characteristics of the arbitrators as determinants of the team performance. We find that mixed gender teams and previous team member’s collaborations increase the time to resolution contrary to team members’ experience and diversity in the professional background that decrease it. None of the team characteristics considered has an impact on the quality of the final judgment. Our findings talk to the current policy debate on the reform of the international investment arbitration system aiming to increase its effectiveness and transparency.

IMPLEMENTATION OF DISPUTE SETTLEMENT OUTSIDE THE COURT THROUGH THE INDONESIAN NATIONAL ARBITRATION AGENCY (BANI) BASED ON ISLAMIC JUSTICE

In the current era of globalization, the economy's most prominent characteristic is the fast-paced nature that drives people to enter the free market and free competition. Proper implementation of what was agreed upon together is the hope of all parties bound in the agreement. Dispute resolution that arises in the implementation of an agreement can be settled through arbitration. The purpose of this study is to examine and analyze the truth about the implementation of dispute resolution outside the court through the Indonesian National Arbitration Board. It has been effective in providing legal certainty and justice. This study uses a sociolegal research approach (sociolegal research approach). The data used are primary and secondary data. In this analysis technique, the steps taken are collecting legal materials, both primary legal materials and secondary legal materials relating to the rule of law related to alternative dispute resolution, which is analyzed descriptively analytically. Research Findings found that the implementation of dispute resolution outside the court has not been effective because it has not provided legal certainty and justice. Weaknesses in the arrangement of third parties outside the arbitration agreement can participate in the dispute resolution process through arbitration, the settlement system, and the cancellation system of arbitration awarding outside the court through the Indonesian National Arbitration Board (BANI). The need for reconstruction of the provisions in Article 36, Article 46, and Article 70 of Law No. 30 of 1999 concerning Arbitration and Alternative Dispute Resolution.

Paradigma Posmodern Sebagai Dasar Filosofi Perilaku Budaya Masyarakat Indonesia di Masa Pandemi

This paper focuses its study on the postmodern paradigm as the basis for the philosophy of cultural behavior of the Indonesian people during the COVID-19 Pandemic. This study aims to determine the relevance of the application of the postmodern paradigm as the basis for shaping and strengthening the national immunity of the Indonesian people. The approach used in this study is metodeliterature review. This approach is used because data collection and analysis is based on the literature study stage. The findings of this study are 1) the postmodern paradigm is a paradigm that appears as a critical reaction to the failure of modern projects, 2) rejection and denial of metanarations, monoliths, convention and arbitration systems, as well as rejection and denial of the objectification of truth, subject determination and limitation of freedom. are elements contained in the postmodern paradigm, 3) the postmodern paradigm is relevant to be applied as the basis for the philosophy of Indonesian people's behavior during the COVID-19 pandemic because it can help strengthen national values in Indonesian society.

Beyond the Rabbinic Paradigm

Using medieval Cologne as an example, this paper seeks to extract traces of a lay leadership from rabbinic texts of medieval Ashkenaz. It reveals evidence of a culture of leadership and arbitration that was based on Jewish tradition and common sense, rather than an emphasis on talmudic law and argumentation. This is demonstrated by a discussion of known leaders, texts about Cologne Jews, rabbinic statements that criticize Cologne's Jewry for halakhic leniency in favor of economic gain, and cultural assimilation to the Christian environment. The sources presented in this study suggest the existence of a lay leadership entrusted with governance and arbitration, existing in Cologne and possibly other places in medieval Ashkenaz. This system of governance and arbitration seems to have been possible in Jewish communities that had no strong rabbinic presence and probably existed in many places. Only with the arrival of strong local rabbinic authorities did the lay leadership yield its place to rabbinic leadership.

Arbitration in Bhutan: A Primer

This guidebook was collaboratively written by the first class of students to enter into the Jigme Singye Wangchuck School of Law (JSW Law), Bhutan’s first and only law school. It was originally conceived as a classroom assignment in a course on Alternative Dispute Resolution (ADR). In that class, students explore Bhutan’s centuries-old traditions of village dispute resolution (including nangkha nangdrik and other strategies developed by elders to restore harmony between neighbours). Students also study Bhutan’s more contemporary efforts to create modern, efficient, and accessible alternatives to the formal justice system that bring its ancient traditions forward into the twenty-first century. This guidebook describes the process of arbitration. It describes how business persons both inside and outside of Bhutan can take advantage of the services provided by the Alternative Dispute Resolution Centre (ADRC)—Bhutan’s officially-designated arbitration centre. The publication is intended as a resource that the ADRC and other agencies can distribute to potential disputants who might benefit from arbitration, including those who are contractually bound to use arbitration in case of a dispute. Arbitration combines the new with the old; efficiency with substantive rigor; and a focus on business with a concern for healthy and constructive relationships. The existence of a strong arbitration system is considered essential for the conduct of big business transactions in the 21st century, but can also be a significant asset for small and medium sized enterprises. Arbitration resonates with Bhutan’s traditions of resolving disputes sustainably, discretely, and in such a way that the goodwill between neighbours and business associates is kept alive. But it is also important to recognize what Arbitration as a process cannot accomplish, and where other dispute resolution strategies—including direct negotiation, nangkha nangdrik, or the formal court system—might better serve the interests of disputing parties.