Arbitration Decisions Research Articles

Annulment of an International Commercial Arbitration Award: The Ukrainian Experience

Background: The development of foreign economic relations between business entities is the key to a stable economy of each country as a whole. During the implementation of these relations, the emergence of disputes and the procedure for their resolution is one of the main prerequisites for giving preference to alternative dispute resolution, namely international commercial arbitration. Despite the existence of unified rules and standards for the recognition and enforcement of international commercial arbitration awards, which are enshrined in the New York Convention of 1958, many issues arise in the doctrine of international civil procedure and law enforcement practice. These issues are the result of an inconsistent approach to arbitration in the national legislation of the member states of the New York Convention of 1958. Methods: The article will consider the distinction in the definitive approach of ‘challenging’ and ‘annulment’ the decision of international commercial arbitration through the prism of comparative legal regulation and evaluation of the results of both the domestic doctrine of arbitration and foreign scientific schools. In addition, during the analysis of the numerical judicial practice of national courts, the problematic issues of the procedural procedure for annulment of decisions of international commercial arbitration and the grounds for their annulment are considered. Results and Conclusions: Among the results, some gaps and contradictions were discovered, in particular, the ideas of ‘challenging’ and ‘appealing’ such awards. These procedures differ in that within the framework of the procedure for challenging the decision of international commercial arbitration, and the state court has no right to review such a decision on the merits.

EXAMINING THE PROVISIONAL ORDER IN ARBITRATION IN DOMESTIC LAW, EXPLAINING THE NEEDS, GAPS, AND HARMS OF THE CURRENT SITUATION

Iran’s legal system is encountering numerous ambiguities and gaps due to evident and unavoidable weaknesses in the field of legislation and the existence of a dual structure of laws, which has caused inadequacies and challenges for the arbitration institution. As a result, the public desire to refer claims to arbitration has decreased. One of the most critical legal weaknesses in arbitration can be the failure to determine the independence and impartiality of the exclusive arbitrator, conflict in jurisdiction and arbitration, and the creation of an arbitration institution in the case of divorce in a faraway from the existing conditions. The current conditions of the philosophy of arbitration, the gaps about the law regarding the expert opinion issued by the arbitrator, and the legal ambiguity regarding the issuance of a provisional order and the fulfillment of the request, at the same time, many laws seem obsolete and old when it comes to arbitration. In addition to the legal system's weaknesses regarding the arbitration institution, the educational system does not work properly to improve the level of knowledge of the people and law students, especially lawyers and judges, and the judicial system deals with the content of any protest with many interventions. In this way, it has taken the strength of the arbitration institution and its votes. On the other hand, it has caused the accumulation of arbitration votes in the judicial system, while this possibility exists in most of the world's legal systems. A kind of judicial supervision of the arbitration award is foreseen in the form of the possibility of protesting the arbitration award. This is only limited attention to a part of the decision issued by the arbitrator. Also, on the other hand, courts, in many cases prevent the implementation of arbitration decisions for many reasons, and all these issues have caused the lack of development of arbitration.

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.

Rapid Review of "No Surprise" Medical Billing in the United States: Stakeholder Perceptions and Challenges.

Surprise medical bills received after care delivery in both emergency and non-emergency situations for out-of-network (OON) or other contractual health plan regulations adds additional stress upon the care guarantor, most often the patient. The passing and continued implementation of the federal No Surprises Act (NSA) and related state-level legislation continues to influence the processes of care delivery in the United States. This rapid review evaluated the literature specific to surprise medical billing in the United States since the passing of the No Surprise Act, guided by the preferred reporting items for systematic reviews and meta-analyses (PRISMA) protocol. A total of 33 articles were reviewed by the research team and the results demonstrate industry stakeholder perceptions related to two primary industry themes (constructs) surrounding surprise billing: healthcare stakeholder perspectives and medical claim dispute (arbitration) processes. Further investigation identified sub-constructs for each: the practice of balance-billing patients for OON care and healthcare provider, and facility equitable reimbursement challenges (primary theme 1), and arbitration observations and challenges surrounding (a) the NSA medical dispute process, (b) state-level arbitration processes and perceptions, and (c) use of the Medicare fee schedule as a benchmark for arbitration decisions (primary theme 2). The results indicate the need for formative policy improvement initiatives to address the generation of surprise billing.

Refusal to Recognize and Enforce Decisions of international Commercial Arbitrations on the Basis of Contradiction to Public Policy

The relevance of this study is that due to the conditions of the globalization of the world economy and the development of international commercial turnover, the importance of international commercial arbitration is rapidly increasing. There is also complexity and ambiguity in understanding the legal category of "public order" because this institution is not a definitively regulated area of law enforcement in the modern legal order. This article’s research object is the social relations arising through the activities of arbitration courts in international commercial turnover. This work aims to identify the procedures, mechanisms, and features of applying the public policy clause in recognizing and enforcing international commercial arbitration decisions. When writing this article, both general scientific research methods, including analysis, synthesis, deduction, and induction, and special methods of cognition, such as comparative legal and descriptive methods, were used. One of the main methods in this work is comparative law, as it helps identify the similarities and differences of the legal systems under consideration, which are the subject of the study. The novelty lies in consideration of the correlation of issues concerning the legal nature of "public order," as well as the analysis of cases related to the procedure of refusal to recognize and enforce decisions of international commercial arbitration in the territory of a foreign state based on contradiction to public order. In the course of the study, the following conclusions were made. The complex problems that have formed in this area are almost impossible to solve by signing and putting into effect a single normative legal act at an international level. The list of cases applying this legal category in arbitration activities is non-exhaustive. The public policy clause is one of the most important components of the institutions of private international law. The institution of public order has an extraordinary character in the decisions of international commercial arbitration.

Review of the Asian Agricultural Products Ltd. v Sri Lanka ICSID Arbitration Decision

Yatırım tahkimi, son yıllarda önemi artan bir yatırım uyuşmazlığı çözümü yöntemidir. Yatırım tahkimiyle yabancı yatırımcılar ile ev sahibi devletler arasında oluşan anlaşmazlıkların hızlı ve tarafsız bir biçimde çözülmesi amaçlanmaktadır. Çalışmamızda Uluslararası Yatırım Anlaşmazlıklarının Çözüm Merkezinde (ICSID) çözümlendirilen ve yatırım tahkimi açısından önemli bir dava incelenmiştir. Bu dava kimi yazarlar tarafından “dönüm noktası” olarak adlandırılmaktadır. Çalışmamızda ilk olarak çalışmaya konu olan Asian Agricultural Products Ltd. ve Sri Lanka arasında gerçekleşen uyuşmazlığa neden olan tarihsel gelişim süreci incelenmiştir. Ardından hakem heyetine başvuran Asian Agricultural Products’ın taleplerine yer verilmiştir. Bu taleplere ilişkin hakem heyetinin vermiş olduğu karara değinilmiş ve bu kararla ilgili açıklamalar yapılmıştır. Son olarak muhalif görüşe ve dayanağına yer verilmiştir.

Proportionality Balancing under General International Law: the Case of Article 25(1)(b) of ARSIWA

Abstract Article 25(1)(b) of ARSIWA provides that a plea of necessity defence must not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole. This requires a balancing between the interest of the invoking State and that of the victim State or the international community. However, how to conduct such a balancing has not been adequately addressed in practice on in literature. This article adopts the approach of proportionality balancing under domestic public law and certain branches of international law and applies it to the context of Article 25(1)(b). Specifically, this article draws from the principle of balancing by Robert Alexy, who advocates balancing not the interests per se, but the change in respective interests caused by the intervening event. This article argues that such an approach avoids the value judgments that should be reserved for States and provides for a workable solution to operationalize Article 25(1)(b). Through a critical review of judicial and arbitral decisions, this article further explores how such an approach to proportionality balancing may be applied in the context of Article 25(1)(b) in practice, which can be broken down to three balancing pairs, depending on the party against which the necessity plea is invoked: State versus State, individual versus State, and State versus international community.

The potential influence of prior work experience on unfair dismissal arbitration decisions related to employee misconduct: an exploratory study of decision styles

This article reports on an exploratory aspect of a larger study that examines unfair dismissal arbitration decisions relating to misconduct derived dismissals made by Australia's federal industrial tribunal. The central proposition explored is that an association occurs between the arbitrator's work history and their decision to overturn a dismissal. The arbitrators' previous occupations were classified based on their alignment with unitarist (employer harmony) and pluralist (worker interests) frameworks, or the ‘blended’ place in between. Subsequent logistic regression modelling allowed us to identify three types of arbitral decision styles: systems‐driven, evidence‐based and restorative‐voice. These decision styles offer our readership a descriptive framework that consolidates statistically significant decision factors. Australian media reports and professional forums scrutinise the appointment of members to its national industrial tribunal and the decisions that they make. The decision styles presented here can inform organisational stakeholders, including workers, HR managers, supervisors, unions and industry bodies who need to apply and/or respond to misconduct‐driven dismissal processes or formulate relevant policies, processes and systems such as codes of conduct or performance management.

The premature expiration of arbitration litigation in investment disputes

Arbitration litigation shall be completed by the issuance of an arbitral award ending the dispute (Al Tarawneh & Al-Qhaiwi, 2020). This type of legal litigation may also end due to a contingency that occurs before the issuance of this arbitral award. The problem of this paper is to determine the cases in which the arbitration dispute can end without the issuance of an arbitral award. To study this topic, we follow the analytical approach in light of the provisions of the United Arab Emirates (UAE) Arbitration Law promulgated by Federal Law No. (6) of 2018. At the end of this paper, we conclude that the arbitration dispute may end without the issuance of an arbitral award for many reasons. This termination may be ordered by the president of the competent court, by a decision from the arbitral tribunal, by the litigant’s reconciliation, by the expiry of the arbitration deadline, or by ruling the invalidity of the arbitration agreement. In such cases, the arbitration litigation is considered expired without an arbitral decision based on the legal grounds of fulfilling one of the procedural reasons that could lead to cessation of litigation before adjudication (Zamzam, 2020)

Enforcement of Annulled Awards of International Commercial Arbitration: Assessment from the Point of View of General Principles of Law

An international commercial arbitration decision annulled by a state court at the place of its issuance in one state is often enforced in another state. An arbitrary interpretation of article 5 of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 allows for the enforcement of cancelled decisions. When interpreting this rule, State courts do not take into account the purpose of this Convention. The purpose of this study is to interpret the provisions of the 1958 New York Convention regarding the recognition and enforcement of foreign arbitral awards annulled at the place of their rendering. By means of analysis, synthesis, induction, deduction, generalization as well as by means of formallogical and formal-legal methods, the evaluation of the enforcement of annulled arbitral awards from the point of view of general principles of law was conducted. The author determined that the recognition and enforcement of foreign arbitral awards annulled by the state court at the place of their issuance violates the principles of legal certainty, lis pendens, res judicata, and also leads to negative consequences for the participants in the arbitration proceedings. Based on the provisions of the New York Convention, it has been revealed that the arbitration award and the acts adopted in relation to the annulled arbitration award form an interconnected structure. The elements of this structure are defined. It is proved that the execution of cancelled arbitral awards contradicts the logic laid down by the New York Convention. It is proposed to eliminate the ambiguous interpretation of the provisions of the Convention on the Enforcement of Foreign Arbitral Awards Annulled at the place of their issuance by establishing at the international legal level a clear provision on the impossibility of enforcement of annulled arbitral awards.

A Discussion of the Decision to Apply Interim Measures of Emergency Arbitration

The emergency arbitration clause has been added to the arbitration rules of several arbitration centers around the world. The emergency arbitration shall be appointed before the establishment of the arbitral tribunal and shall be tasked with issuing interim measures. If there is no emergency arbitration, a party needs to wait until the arbitral tribunal is formally formed or ask the court to issue measures. If parties have to wait until the arbitral tribunal is formed, then the enacted interim measures are too late and therefore ineffective. Thus, with its characteristics, the emergency arbitrator has overcome this situation and demonstrated the importance of protecting the assets and legitimate interests of the parties. Emergency arbitration is still a new matter in Vietnam. This article focuses on a detailed analysis of some theoretical and practical issues of emergency arbitration in international arbitration. The article then concludes by proposing suggestions about the ability to enforce emergency arbitration decisions in international arbitration laws.
 
 

Efforts To Settle Government Project Construction Work Contract Disputes Through Mediation

<span lang="EN-US">This study aims to determine and analyze the procedures for resolving government project construction work contract disputes between service users and service providers through arbitration and to analyze the legal force of arbitration decisions on disputes in construction contracts. The legal approach used in this research is empirical and normative legal research (normative legal research). The population of this research is all contractors in the province of Papua while the sample of this study is the party who represents the government as the assignor of the Public Works and Public Housing (PUPR) office of the province of Papua to contractors to carry out construction projects in the province of Papua. Sampling in this study was conducted by means of non-probability sampling, ie not all individuals in the population have the same opportunity to become members of the sample. The type of non-probability sampling used is purposive sampling, in which the author uses his own judgment armed with sufficient knowledge about the population to select sample members. The data analysis method used in this study is a qualitative descriptive analysis method, which is done by collecting data obtained from legislation and literature related to construction services and construction contract law then linked to data obtained from the field in the form of respondents' opinions.<strong> </strong></span><span lang="EN-US">The conclusion that can be drawn from this research is that the settlement of construction contract disputes between PT. Kusman Jaya Papua with the Public Works Department to pay for the lack of payment for the construction of the Autonomous Office Building. Settlement of disputes through arbitration must be agreed by both parties. The Arbitration Decisions are: granting the claim of the Petitioner, granting the claim of the Petitioner regarding Compensation for late payment, punishing PT. Kusman Jaya Papua to pay a fine for the delay in the construction of the Autonomous Office Building, punishing both parties to pay court fees of Rp.</span>

On international arbitration, choice of substantive law, and the CISG: a case law study

Abstract This article analyses past arbitral decisions concerning disputes related to the international sale of goods. It also explores when and how arbitrators should apply the CISG as the substantive law to resolve the merits of these disputes. This article takes into account three different scenarios in determining the applicable substantive law: (i) when parties choose the applicable substantive law; (ii) when there is no choice of law by the parties, and the arbitrators apply the indirect method; and (iii) when there is no choice of law by the parties, the arbitrators apply the direct method. In a nutshell, it is our submission that arbitrators’ should respect the laws chosen by the parties and, if the CISG applies by virtue of this choice, then arbitrators should not circumvent the use of the CISG.

THE NATIONAL RECOGNITION OF THE INTERNATIONAL ARBITRATION IN THE INTERNATIONAL TRADE DISPUTES: A COMPARATIVE STUDY BETWEEN THE FRENCH AND JORDANIAN LAWS

The article treats the recourse of the parties to disputes in international trade to arbitration, as they can choose arbitrators specialized in the subject matter of the dispute, far from the conflict of national laws and the dilemmas of attribution rules in private international law. This article employed a qualitative analysis and research approach. The research found that the increase in recourse has raised legal questions regarding the settlement of disputes outside the borders of the state, especially since the association of the international contracts with economic values protected by national laws creates obstacles to subjecting these disputes to the international arbitration. How have the national laws dealt with the international arbitration, affected it and were affected by it? The research responded to these questions by consulting the French and Jordanian law. As a result, the arbitration takes the international character of the presence of foreign elements in the relationship or because of the subject of the dispute to be resolved, and this is the legal criterion. A valid arbitration agreement produces its own law independently of the mechanisms of national law. National legislation should recognize an international arbitration decision as long as the arbitration decision is validly rendered in accordance with the law governing the arbitration process. French law recognizes the international arbitration decisions, while Jordanian legislation does not recognize international arbitration decisions through direct provisions, but rather recognizes the decisions because of its commitment to implement the 1958 New York Convention.

FULL PROTECTION AND SECURITY STANDARD AS A PREVENTIVE TOOL FOR THE PROTECTION OF A FOREIGN INVESTOR AGAINST ILLEGAL ACTIONS OF THE HOST STATE

The article considers the issue of the application of the standard of full protection and security as a preventive tool for the protection of a foreign investor against illegal actions of the host state. The relationship between a foreign investor and the state-recipient of investments is not always a partnership and mutually beneficial tandem. Carrying out investment activities, moreover, in a foreign country, is a risky activity that requires the protection of the rights of a foreign investor. The standard discussed in this article has a preventive and compensatory nature, as evidenced by court and arbitration decisions. In particular, the main purpose of this standard has traditionally been to protect the investor from various types of physical violence, including the violation of investment property rights, but the concept of this standard has now evolved beyond the physical protection of the investment to include judicial and legal protection. The current state of international investment law jurisprudence regarding the full protection and security standard is not flawless, as is usually the case in jurisprudence regarding other standards. Nor is it irretrievably fragile. The standard of full protection and safety is harm; on the other hand, it was spread to legal detriment. The relationship between the standard of full protection and security based on the treaty and customary international law, which has already been repeatedly given attention by jurists, must be correlated as lex specialis, since its scope is not fully determined by customary international law as lex generalis. It may go beyond the physical and some legal protection already built into customary international law. However, compliance with the treaty-based standard of full protection and security is measured by due diligence, as is the case with the customary international law obligation to provide full protection and security to aliens.

Analisis Penyelesaian Sengketa Konsumen Melalui Arbitrase

Consumer disputes are disputes that occur between consumers and business actors in buying and selling transactions. The government issued the Consumer Protection Act to provide legal protection to consumers. However, in its implementation there is also protection against arbitration decisions that should and are binding, the Consumer Law provides an opportunity for parties who object to the offer can file an objection. Therefore, this study aims to find out how to resolve consumer disputes through arbitration in laws and regulations and how to resolve conflicts in dispute resolution through arbitration. The results of the study indicate that there is a conflict of norms between the Consumer Protection Act and the Arbitration and Alternative Dispute Resolution Act regarding the nature of the arbitration award which is final and binding. A form of norm conflict is to use it as a preference.

The Supreme Court's 2021–2022 Arbitration Cases: A More Textualist Approach

The U.S. Supreme Court's arbitration‐heavy docket this past term reminds me of the central role arbitration plays in society. Through its five arbitration decisions in the 2021‐2022 session concluded in June, the Court fine‐tuned this system of arbitration.

Izazovi reforme mehanizma rešavanja investicionih sporova

Criticisms addressed to the mechanism for resolving disputes between foreign investors and host countries, i.e. investment arbitration, have led to various proposals and attempts to find optimal reform options. Within the framework of UNCITRAL's Working Group III, since 2017 proposols from various stakeholder have been considered. This paper analyzes the main objections to the dominant investor/state dispute settlement system, as well as the most important reform options, which appear in the literature and practice of international organizations, primarily UNCITRAL. Although this process is still ongoing, it is evident that, on the one hand, there is a plurality of different interests and proposals of the main actors of international investment law, while, on the other hand, there is a wider consensus on the necessity of certain reforms in order to establish and strengthen consistency, uniformity and predictability of arbitration decisions. Certain reforms are already being implemented in practice through new investment agreements.

Investment for Green Growth: An Analysis of the CAI Environmental Provisions

Abstract Since 2012, international investment tribunals have passed several awards highlighting the interaction between environmental obligations imposed upon foreign investors and the host State’s duties towards investors in terms of green investment. The EU-China Comprehensive Agreement on Investment (CAI) is a step forward in continuing the debate on environmental protection and conservation in the context of investment law. This article focuses on section IV subsection 2 of the CAI and analyses the relevant provisions of the CAI and other Sino-EU BITs having a potential impact on the development of environmental policy and climate change-related measures. This article references publicly available investor-State arbitration decisions to understand the ramifications of environmental standards on foreign investment policymaking. Further, this article also highlights the potential impact of the CAI on green investment and green financing measures undertaken by the European Commission.

Refusal to Recognize and Enforce Decisions of international Commercial Arbitrations on the Basis of Contradiction to Public Policy

The relevance of the study is confirmed by the fact that in the conditions of globalization of the world economy and the development of international commercial turnover, the importance of international commercial arbitration is rapidly increasing, as well as by the fact that there is complexity and ambiguity in understanding the legal category of "public order" due to the fact that this institution is not a definitively regulated area of law enforcement in the modern legal order. The object of research of this article is social relations arising as a result of the activities of arbitration courts in international commercial turnover. The purpose of the work is to identify the procedures, mechanism and features of the application of the public policy clause in the field of recognition and enforcement of international commercial arbitration decisions. When writing this article, both general scientific research methods, including analysis, synthesis, deduction and induction, and special methods of cognition, such as comparative legal and descriptive methods, were used. One of the main methods in this work is comparative law, since it helps to identify the similarities and differences of the legal systems under consideration, which are the subject of the study. The novelty lies in the consideration of the correlation of issues concerning the legal nature of "public order", as well as the analysis of cases related to the procedure of refusal to recognize and enforce decisions of international commercial arbitration on the territory of a foreign state on the basis of contradiction to public order. In the course of the study, the following conclusions were made. The complex of problems that have formed in this area is almost impossible to solve by signing and putting into effect a single normative legal act of the international level. The list of cases of application of this legal category in arbitration activities is non-exhaustive. The public policy clause is one of the most important components of the institutions of private international law. The institution of public order has an extraordinary character in the decisions of international commercial arbitration.