Arbitration Research Articles

Advocacy for Online Proceedings: Features of the Digital World and Their Role in How Communication is Shaped in Remote International Arbitration

The Covid-19 pandemic disrupted in-person dispute resolution proceedings, leading to the rapid adoption of digital technologies for remote hearings in international arbitration. The use of these technologies has opened up new possibilities for enhancing procedures, improving efficiency, and streamlining processes. However, it also raises concerns about transparency and authenticity in virtual hearings. This paper explores the impact of digital technologies on the semiotics of law and legal communication in international arbitration, considering the intersections between new technologies and persuasion. Based on practices like the use of e-evidence, debates surrounding remote hearings, and the formulation of standards for stakeholders’ behavior, the study takes a practice-based approach, exploring cognitive processes, such as memory and attention, and their influence on the behavior of counsel, arbitrators, and witnesses in remote hearings. It highlights the key issues, findings, challenges, and future research opportunities arising from the introduction of digital technologies in this field, including considerations on how stakeholders of a virtual hearings are affected by the unique features of the digital environment.

The Validity of Arbitration Agreements Providing for Arbitration in Mainland China Administered by Overseas Arbitration Institutions

With China increasingly opening up in relation to trade, the number of overseas arbitration institutions practicing in China’s free trade zones is expected to rise. At the same time, however, the validity of arbitration agreements remains uncertain under Chinese arbitration law, with arbitration clauses which tend to permit administration only by domestic arbitration commissions. Chinese arbitration legislation and recent cases demonstrate that this issue can be attributed to difficulties identifying a designated arbitration commission or tribunal, as well as unclear standards to determine the nationality of the arbitration award. Considering relevant decisions of Chinese courts over the past twenty years, this article concludes that the attitude of the Chinese judiciary towards arbitration by overseas arbitration institutions in China has shifted from conservative to more open. However, a number of issues, including confusion around the arbitration jurisdiction (caused by absence of a requirement to specify the arbitration institution) make this area a difficult one for practitioners. overseas arbitration institutions, the validity of arbitration agreement, free trade zone, the seat of arbitration, the New York Convention

THE STATUS OF FOREIGN ARBITRATORS UNDER INDONESIAN LAWS

Foreign arbitrators in Indonesia have never been questioned before with regard to their status or legality. The main aim of this article was to analyze the status of foreign arbitrators in the light of the recent Supreme Court of Indonesia’s decision on the PT. Timas Suplindo case (2017). The method used in this article was descriptive-normative of the subject analyzed supported by the case-law, in particular the decision of the Supreme Court of the Republic of Indonesia concerning the issue of foreign arbitrator. This article concluded, while there is an absence of regulation concerning the status of foreign arbitrator in Indonesia, the parties should include and state the legality of the foreign arbitrator in their arbitration clause. This article also recommended, the Arbitration Law should be supplemented with the provision on the status of foreign arbitrator in the future amendment of the Law.

The risk of abuse of arbitration proceedings in jurisdictions where corruption is pervasive

This paper examines the intersection of international arbitration and money laundering and corruption in jurisdictions where corruption is endemic, such as some Eastern European countries, to provide insight into the challenges and risks involved in arbitrating. Few sources have addressed the issue of money laundering and corruption in international arbitration in these jurisdictions. Given this significant research gap, the aim of this paper is to draw attention to areas where investment and international trade relations may be undermined by criminal activity. To this end, the specific methods used by money launderers were explored through a qualitative study involving ten suspected money launderers and eighteen prevention experts. The findings were then tested quantitatively. The results show that, as the number of corruption allegations in arbitration has increased, arbitrators have assumed an important role in reviewing compliance rules related to corruption. As a result, this article seeks to improve current understanding of compliance issues in arbitration in countries where corruption is prevalent and thereby identify a path for future research.

Change of factual circumstances in the context of the issuance of judicial acts in civil cases

The subject of the study within the framework of this article are the norms of civil procedural law and arbitration procedural law concerning the issuance of judicial acts in connection with a change in factual circumstances relevant to the case. The purpose of the study is to identify and classify cases in which the current legislation and law enforcement practice allow the issuance of a new judicial act in connection with a change in the actual circumstances of the case. At the same time, the purpose of the study is related to the confirmation of the hypothesis about the diversity of the bases of such a classification.Within the framework of this study, the functional method, the system-structural method, the formal-legal method and the hermeneutic method were used. The use of these methods is due to the need to analyze a large volume of legal norms and judicial practice on the subject of the study. The article analyzes the legal mechanisms, the application of which is associated with the issuance of judicial acts in the framework of civil and arbitration proceedings based on changes in the factual circumstances of the case. The following mechanisms are identified as these mechanisms: the possibility of filing a claim with a new basis, revision of judicial acts under new circumstances, changing the method and procedure for the execution of a court decision, postponement and installment of the execution of a court decision, indexation of the amounts awarded.Cases of application of these mechanisms are classified according to the procedural order of consideration by the court of changes in circumstances and its consolidation in judicial acts, while the following types are distinguished: cases related to the consolidation of circumstances by making a new court decision on a claim with a new basis; cases related to the consolidation of circumstances by making a court ruling in connection with the emergence of new circumstances; cases related to the consolidation of circumstances by issuing a court ruling in connection with a change in the method and procedure for the execution of a court decision, postponement and installment of the execution of a court decision, indexation of the amounts awarded. Cases of the use of these mechanisms are also classified by the type of judicial act fixing such changes, while the following types are distinguished: cases related to the consolidation of circumstances by issuing a court decision; cases related to the consolidation of circumstances by issuing a court ruling.The author concludes that the use of the term "new circumstances" is incorrect in relation to certain grounds for reviewing judicial acts, in connection with which it is proposed to amend the norms of procedural legislation. In relation to these cases, it is proposed to use not the term "new circumstances", but the term "change in the content of legal norms or their interpretation that is relevant to the case".Based on the above, the purpose of the study has been fully achieved.

‘This Train Still Runs’: The Railway Case that Defines Arbitration Legislation and Practice

Anyone seeking to understand 21st century arbitration law has to master the story of the most pathological case of the previous century: Société Européenne d'Etudes et d'Entreprises c/ République socialiste fédérale de Yougoslavie, usually known as SEEE v. Yugoslavia.

The Concept of Procedural Good Faith in Arbitration Proceedings

The Concept of Procedural Good Faith in Arbitration Proceedings

System of Tax Incentives in Research and Business Development: An Analysis of the Recent Case Law of Portuguese Tax Arbitration

The main objective of this work is to analyse the understanding of the tax authority regarding the application of the tax benefit in support of research and development in professional societies and whether this understanding complies with the legal provision. Additionally, to understand the sense of the recent decisions of the arbitral court in this matter. For this purpose, the study applies the legal research methodology. Several legal sources have been analysed, such as the personal income tax law, the corporate income tax law, the investment tax law, administrative doctrine and the jurisprudence of the Portuguese arbitration court. The study shows that the tax authority has been assuming anunderstanding that does not fit in the legislation currently in force and administrative doctrine concerning tax benefits for the research and development of professional companies. The public authority limits the tax deduction to these entities, and this limitation would not apply in the case of commercial, industrial or service companies. Moreover, the Portuguese arbitral court recently confirmed this discriminatory understanding and agreed with this view. Thus, case law contributes significantly to the clarification of the application of the law.

Arbitration In Times of Economic Uncertainty: The Role of Qatar Financial Center’s Jurisprudence in Shaping International Arbitration Principles

The framework applicable to international arbitration is notably very liberal, as are the criteria of internationality embraced by both academia and practice. However, the utilization of this form of transactional justice provides tangible benefits, such as alleviating the burden on national courts, expediting the delivery of justice, establishing a body of international arbitration jurisprudence, flexibly securing commercial law at both national and international levels, and more. It's quite likely that these developmental aspects have facilitated the growth of alternative dispute resolution methods as we are currently witnessing. Moreover, it can be asserted that the conjunctural uncertainties that the legal world must contend with encourage the resort to arbitration. In fact, periods of uncertainty prompt economic entities to align themselves with familiar and protective arbitral frameworks that serve their interests. This circumstance appears particularly prominent in economies closely tied to the oil sector, such as those found in the Gulf monarchies. Consequently, this paper aims to demonstrate for the first time in scientific literature that, given their structural and cyclical fundamentals, the Gulf monarchies have become preferred venues for arbitration. In this context, the jurisprudence actively developed by Qatar's National Arbitration Center (QFC-QICDRC) and established by Law No. 7 of 2005 in accordance with Law No. 2 of 2017, also known as the "National Arbitration Law", holds significant importance in comprehending the mechanics of a legally prominent and effective practice: International arbitration.

Note: The Heirs of Pausimachus v City of Kalymnos arbitration

Abstract The so-called ‘Knidian arbitration’ between the heirs of the banker Pausimachus and the city-State of Kalymnos has been the subject of much debate amongst historians and archaeologists. However, it seems to have escaped the attention of arbitration practictioners, despite the fact that it constitutes, in essence, a commercial proto-arbitration against a State. The present contribution aims at correcting this omission. The award is a treasure trove of information about the conduct of ancient arbitrations. While arbitrations have become increasingly sophisticated procedures, this ancient award also helps identify essential aspects of the arbitral process that transcend time. To do so, this contribution provides both an overview and commentary of the award as well as a translation of the surviving fragments.

Lex-Mercatoria Principles: A keystone in International Commercial Arbitration

The international Commercial Arbitration is a dispute resolution mechanism; thus, it allows the parties to a dispute to settle their affair outside the national courts. On the other hand, lex mercatoria can be defined as a body of rules that encompasses usages and customs that were used by the merchants in the medieval ages, thus the English nomination “merchant law’. After globalization, more specifically in the twentieth century, both above-mentioned concepts have been developed and adopted by most of the legal systems around the world. This paper aims to define lex mercatoria by exploring its’ history, its’ development, and by tackling all its’ elements to study the impact of lex mercatoria’s principles on international commercial arbitration proceedings.

Regarding consideration of the principle of primacy of arbitration in cases of invalidation of an arbitration agreement in economic proceedings

The article examines the principle of primacy of arbitration. It continued the doctrine of «competency of competence» and can be defined as an approach established by international legal obligations of Ukraine and special legislation on international commercial arbitration, according to which consideration of the issue on validity, effectiveness, and enforceability of an arbitration agreement must precede consideration of the corresponding claim in the state court, except for cases caused by clear disregard public order by such an agreement. It has been proven that consideration by the economic court of an separate claim to invalidate the arbitration agreement goes beyond the permissible forms of state court intervention in commercial arbitration. It is justified that the issue of the invalidity of the arbitration agreement can be considered exclusively together with the claim for the protection of the violated/disputed/unrecognized subjective right or legitimate interest of the party to the agreement. However, even in such a case, the principle of primacy of arbitration must be observed. It is substantiated that the admissibility of expanded perception by state courts of the competence to consider claims about the validity of the arbitration agreement significantly limits the competence of commercial arbitrations and creates the risk of assigning Ukraine to jurisdictions unfriendly to arbitration, contradicting the experience of the leading countries of the world, in particular France, Germany, and Britain. It is substantiated that the presentation of an independent lawsuit to the commercial court to declare the arbitration agreement invalid cannot be recognized as a proper and effective way of protecting a subjective right. It is emphasized that the right to apply to the state court with an independent demand to declare the arbitration agreement invalid should be interpreted in a restrictive way due to cases of abuse of procedural rights, when the sole purpose of initiating such cases is to delay the consideration of disputes and stop the arbitration proceedings. Key words: alternative dispute resolution, international commercial arbitration, economic courts, economic procedure, arbitration clause, invalidity of arbitration agreement, principle of primacy of arbitration, doctrine of «competency of competence», public order.

TINJAUAN KOMPARATIF ANTARA UNDANG-UNDANG HAK CIPTA NO No.19 Tahun 2002 TENTANG HAK CIPTA DENGAN UU No. 28 Tahun 2014 TENTANG HAK CIPTA

This study aims to examine normatively what are the differences between the old and new Copyright Laws. This research is normative legal research, namely research based on written laws and regulations and various literature related to this problem. There are several differences in the arrangements in the new and old Copyright Law, namely that copyright protection is carried out for a longer period of time. Better protection of the economic rights of creators and/or owners of related rights, including limiting the transfer of economic rights in the form of sold flats. Effective dispute resolution through mediation, arbitration or court processes, as well as the application of complaint offenses for criminal prosecution. The trading place manager is responsible for the point of sale and/or copyright infringement and/or related rights in the shopping center they manage. Copyright as an intangible movable object can be used as a fiduciary guarantee object. The minister is given the authority to delete works that have been registered, if the creation violates religious norms, moral norms, public order, state defense and security, as well as statutory provisions. Authors, copyright holders, owners of related rights become members of the Collective Management Organization in order to collect fees or royalties. Authors and/or related rights owners receive royalty payments for creations or related rights products made in an official relationship and used commercially. The Collective Management Institution whose function is to collect and manage the economic rights of creators and owners of related rights is required to submit an application for an operational permit to the Minister. The use of copyright and related rights in multimedia means to respond to developments in information and communication technology.

Limits of Application of the <i>jura novit arbiter</i> Principle in International Arbitration: Some Issues of Theory and Practice

INTRODUCTION. The principle of jura novit arbiter or jura novit tribunus is an analogue of the doctrine of jura novit curia in international arbitration proceedings which is free from the peculiarities of national laws. The significance of its application in international arbitration lies in the powers of an arbitral tribunal to participate in ascertaining the content of the applicable law. Given the features of international arbitration, material limitations are put on the jura novit arbiter principle in order to protect the rights and interests of disputing parties. However, limitations have both positive and negative legal effects.MATERIALS AND METHODS. The authors researched the provisions of international treaties, case law of tribunals and state courts demonstrating the scope of the arbitrator’s discretionary powers and the effects of its limitation, as well as the works of Russian and foreign scholars. The methodological basis of the research includes general scientific and special methods.RESEARCH RESULTS. The analyses of international treaties and case law led to the elaboration of the list of the main limits of the jura novit arbiter application. The study examined the issues in the relationship between jura novit arbiter and other principles aimed at narrowing the scope of its functioning.DISCUSSION AND CONCLUSIONS. The results of the analysis allow to draw the following conclusions. First, there are three major constraints put on the arbitrators' discretion: 1) ne ultra petita (not beyond the request), 2) due process in terms of a right to be heard and the foreseeability test, 3) expediency and efficiency of arbitral proceedings. Secondly, the limitation of the principle is a double-edged sword: on the one hand, it ensures legal certainty and predictability of an arbitral proceeding and its outcome, secures the rights and interests of the parties. On the other hand, the aforementioned limitations reveal also some downsides: there is no clear guidance on identifying conditions under which the ne ultra petita principle does not serve as a boundary of the jura novit arbiter principle; the "foreseeability" is an evaluative concept; and the imbalance between expediency and efficiency principles and jura novit arbiter may give rise to concerns about the established content of the applicable law.

Union of India vs. Reliance Industries Limited and Ors.

Union of India vs. Reliance Industries Limited and Ors.

M.G. Mohanty vs. That State of Odisha

The Commercial Courts Act 2015 (hereinafter referred to as the "CC Act") was established to speed up the resolution of commercial disputes promptly and with as little interference as possible in the highest courts. The law also gives the Commercial Court jurisdiction to hear commercial arbitration proceedings. Although the intention is noble, the legislators inadvertently left jurisdictional inconsistencies in the law, resulting in a conflict with the provisions of the Arbitration and Conciliation Act, of 1996. The conflict of jurisdiction arises due to the distinction between the commercial courts established by law, presided over by Civil Judges Senior Division, and the provisions outlined in the Arbitration and Conciliation Act, 1996 (AC Act). According to the AC Act, exclusive jurisdiction to adjudicate disputes related to arbitration lies with the Chief Civil Court of the respective district. This discrepancy has given rise to uncertainty regarding the authority of newly established Commercial Courts to entertain applications under the Arbitration Act. While a definitive legal resolution to this jurisdictional conflict remains elusive, the Madhya Pradesh High Court, following the Appellate Court's precedent, has determined that irrespective of the claim's value, cases pertaining to arbitration must be adjudicated within the purview of the District Civil Court. It has been observed that commercial disputes connected to arbitration, as governed by Sections 9, 14, 34, and 36 of the Arbitration Law, fall under the jurisdiction of a commercial court situated within the domain of a district judge or an additional district judge. No Class I Civil Judge or any Small Claims Court can adjudicate disputes.

Consumer Empowerment: Safeguarding Consumer Rights Through BPSK’s Arbitration Post the Constitutional Court Decision

The arbitration decision by BPSK, can be filed with objections in accordance with Law 8/1999 and annulment under Law 30/1999. These two actions raise questions related to the arbitration process to resolve consumer disputes, consumer protection, and the impact of the Constitutional Court’s decision on the annulment of arbitration awards. This is because both actions are contrary to the final and binding nature of the arbitration award. Through the doctrinal research method, it was found that three years since the Constitutional Court’s Decision, there has been an increase in decisions related to the annulment of arbitration awards and objections to BPSK decisions. The Constitutional Court Decision has two contrary impacts. It makes easier for the aggrieved party in the process of resolving consumer disputes through arbitration to file for annulment or objection. Meanwhile, it also makes the process of consumer protection through arbitration lose its final and binding force.

Consumer Empowerment: Safeguarding Consumer Rights Through BPSK’s Arbitration Post the Constitutional Court Decision

The arbitration decision by BPSK, can be filed with objections in accordance with Law 8/1999 and annulment under Law 30/1999. These two actions raise questions related to the arbitration process to resolve consumer disputes, consumer protection, and the impact of the Constitutional Court’s decision on the annulment of arbitration awards. This is because both actions are contrary to the final and binding nature of the arbitration award. Through the doctrinal research method, it was found that three years since the Constitutional Court’s Decision, there has been an increase in decisions related to the annulment of arbitration awards and objections to BPSK decisions. The Constitutional Court Decision has two contrary impacts. It makes easier for the aggrieved party in the process of resolving consumer disputes through arbitration to file for annulment or objection. Meanwhile, it also makes the process of consumer protection through arbitration lose its final and binding force.

Can North Korea Enforce Foreign Arbitration Awards?

The enforcement of foreign arbitration awards in North Korea is highly problematic due to the unique legal and economic structures. A dearth of enforcement options for property rights, rooted in limited individual ownership, widespread distrust in local currency, and limited movable assets, leads to a focus on real estate use right for enforcement actions. The absence of private real estate ownership and a proper registration system, however, pose considerable challenges. Article 65 of North Korea’s External Economic Arbitration Law provides seven grounds for refusal to recognize and enforce foreign arbitration awards, one of which allows for broad interpretation, possibly leading to governmental interference or non-enforcement. Furthermore, this article highlights the difficulties in enforcing arbitration awards via real estate assets due to restrictions on ownership and the absence of a real estate registration system. This article also analyzes ambiguities in transferring real estate use rights to foreign creditors following arbitration awards.

1980년 언론기본법에 대한 헌법적 평가

The Basic Act on Press of 1980 is widely regarded as the most repressive law of the 5th Republic of Korea, and this is unsurprising since it was enacted by the new military government that seized power though a coup. However, upon closer examination of the Basic Press Act's detrimental impact, the assessment becomes less straightforward. The clause on registration cancellation is the key factor leading to its classification as highly repressive, as granting the government the power to cancel media organizations' registration for overly broad reasons is inherently unconstitutional. Nevertheless, apart from this provision, it becomes difficult to label the remaining aspects of the Basic Press Act as entirely repressive.
 From the perspective of press freedom, the evaluation of the Basic Press Act is as follows: Firstly, the Basic Press Act makes a distinction between “freedom of expression,” which applies to individuals, and “freedom of the press,” which pertains to media entities. It is based on the theory that the state has an obligation to establish a system that grants privileges and responsibilities to mass media to safeguard press freedom. This theory was known as “the public function theory of the press” or “the institutional guarantee of free speech” at that time. Secondly, the Basic Press Act recognizes the growing influence of broadcasting as a major medium for achieving press freedom and institutionalizes the public broadcasting system. Thirdly, the Basic Press Act formally recognizes the right to know, which is a relatively new and highly commendable addition.
 A significant part of the Basic Press Act's framework still exists today. The functions of the Press Arbitration Commission and the Broadcasting Commission were even strengthened in the new laws that replaced the Basic Press Act in 1987 when the authoritarian government was collapsing. This indicates that the Basic Press Act deserved positive evaluations with respect to its content. The press freedom theory adopted by the Act bears the most similarity to the Newspaper Law and Press Arbitration Law enacted during the Roh Moo-hyun administration. The Basic Press Act's pursuit of the public function theory of the press found realization through the Newspaper Law, while the Basic Press Act's provisions for addressing media damage were implemented through the Press Arbitration Law. However, due to advancements in information and communication technology, the media landscape has undergone significant changes, rendering the inheritance of the Basic Press Act by the Newspaper Law outdated. It is commendable that the Newspaper Law was amended in 2010 to guarantee freedom of the press after the Constitutional Court ruled basic clauses of the Newspaper Law unconstitutional.
 The public function theory of the Basic Press Act was carried over to the Broadcasting Law. Considering the level of broadcasting and communication technology at the time of the 1987 replacement legislation, it was reasonable to incorporate the public function theory into the Broadcasting Law. However, despite technological advancements eliminating the unique characteristics of broadcasting, such as frequency limitations, it is also anachronistic that the Broadcasting Law still adheres to the public function theory. In today's media environment, where anyone can disseminate their thoughts, there should be no distinction between an individual's freedom of expression and the media's freedom of the press. It is time to bid farewell to the theoretical foundation of the Basic Press Act, the public function theory of the press.