Arbitration Research Articles

Account of events, by definition, involves an understanding of the actors

What could justify the paper on evidence in international commercial arbitration? What is so peculiar about this instance of the realisation of the law that it explains the autonomy of the subject of evidence when it takes place in international commercial arbitration? Isn't the general theory of evidence applicable to the demonstration of reality in a certain type of proceedings – arbitral proceedings – whenever they concern commercial and plurilocalised disputes? These are the central questions around which the text will gravitate. We will emphasise what we believe to be the determining factor in the development of a praxis that does not cause a break between the general theory of evidence developed for civil cases tried in state courts and the central vectors of evidence as known in international commercial arbitration: the context of the exercise of jurisdiction.

Arbitration of commercial disputes in the Republic of Kazakhstan and Europe: Issues of theory and practice

Relevance. The relevance of the study is due to the need to resolve problems related to the alternative settlement of economic disputes in Kazakhstan.Purpose. The purpose of the study is to conduct a detailed analysis of the activities of the institute of arbitration in accordance with the current legislation.Methodology. Among the methods used, it is worth noting logical analysis, functional analysis, dogmatic, legal hermeneutics, deduction, induction, and others.Results. The study revealed that this legal institute provides an opportunity for subjects of commercial legal relations to control dispute resolution independently; it also has a number of advantages in comparison with state judicial instances. The main organisations that implement arbitration proceedings in Kazakhstan were considered. The regulatory framework that governs arbitration in the Republic was also examined. It was noted that the main problematic aspects of the functioning of the institute of arbitration in Kazakhstan are related to the delimitation of competence, cancellation of the arbitration agreement, securing a claim, recognition and enforcement of the arbitration agreement. A comparative legal analysis of commercial dispute arbitration in Kazakhstan and Europe was conducted. In particular, the experience of such countries as Great Britain, France, Germany, Poland, Switzerland, Sweden, and others was investigated.Conclusions. The practical value of the results obtained consists in providing recommendations that will improve the effectiveness of one of the most important legal institutes, increase the level of trust and credibility of arbitration in Kazakhstan before foreign persons, and provide a more guaranteed mechanism for ensuring the right of subjects to choose a method of resolving a commercial dispute.

Between commitment and reality: A critical examination of Jordan's adherence to the New York Convention 1958

AbstractThis study critically evaluates Jordan's bifurcated approach to the enforcement of arbitral awards, with an emphasis on its domestic laws and international obligations under the New York Convention. Utilizing a rigorous methodology that melds doctrinal scrutiny with comparative legal analysis, the research delves into Jordan's Arbitration Law 31 of 2001, its subsequent amendments, and the Enforcement of Foreign Judgments Law 8 of 1952. The analysis reveals a marked incongruence between Jordan's national legal frameworks for recognizing and enforcing foreign arbitral awards and its commitments under Article 3 of the New York Convention. The study further quantifies the financial and procedural barriers erected by Jordan's stratified judicial system, contrasting them with universally accepted benchmarks. Informed by international jurisprudence, the research proffers targeted policy recommendations designed to harmonize Jordan's arbitration regulations with prevailing pro‐enforcement international standards. This investigation fills a scholarly void and offers pragmatic, timely solutions, thereby contributing to the global dialogue on compliance with international arbitration norms, particularly from a Jordanian vantage point.

El acceso a la justicia arbitral: reflexiones sobre el amparo de pobreza en los procesos arbitrales en Colombia

This article explores the complex legal and constitutional implications of granting fee waivers in arbitration proceedings in Colombia. Fee waivers are a constitutional guarantee that exempts individuals from certain procedural costs in legal proceedings due to economic hardship, ensuring access to justice. However, its application in arbitration has been a subject of intense debate, as this figure is generally specific to ordinary courts. In this context, the inherent costs of arbitration, which are often higher than ordinary court proceedings, are analyzed. The principle of party autonomy is also considered, whereby agreeing to arbitration implies acceptance of associated costs. Critics argue that granting fee waivers could undermine this autonomy and the binding force of the arbitration agreement. Additionally, concerns about potential abuse and the contractual nature of arbitration as distinct from the judicial system are examined. Proponents and some scholars argue that denying fee waivers could effectively prevent those facing extreme economic difficulties from accessing arbitration, violating fundamental rights to access to justice and equality before the law. The article examines proposals for the exceptional and limited application of fee waivers in arbitration, subject to stringent standards. Alternative mechanisms to improve access to arbitral justice for the economically disadvantaged, such as subsidized services, legal aid programs, and specialized arbitration centers, are also discussed. The importance of ensuring equitable and equal access to arbitral justice to maintain the integrity, legitimacy, and effectiveness of arbitration as a dispute resolution mechanism is emphasized. A balanced approach is required that respects the principles of arbitration while upholding both constitutional and conventional guarantees. The article concludes with a call for reflection, open debate, and collaboration within the legal community to address this complex issue and shape the future trajectory of arbitration in Colombia.

Economic entity as an object of financial control

Subject. This article examines the theoretical and practical issues related to the understanding of the object of financial control, such as Economic Entity, Business Entity, Enterprise, Firm, Organization, etc. Objectives. The article aims to carry out a terminological analysis in relation to the categories similar to the concept of Economic Entity within the framework of financial control; make proposals for the unification of the categories of Economic Entity, Business Entity, Enterprise, Firm, Organization in the formation of the results of financial and control activities for the purposes of civil, criminal, arbitration, and administrative proceedings. Methods. For the study, we used the systems and logical approaches, and the general scientific cognition methods. Results. Based on the categorical and terminological analyses, the article makes proposals for the elimination of contradictions in terms of the formation of a unified approach to the definition of the object of financial control. Conclusions and Relevance. The proposals made to eliminate contradictions in regulatory documents and reference literature in order to form a unified approach to determining the object of financial control will help reduce risks when conducting control, audit, verification and expert activities on the most important problematic issues of interaction with civil, criminal, arbitration, and administrative processes. The results of the work carried out can be used in the activities of control and audit offices, forensic units, audit organizations and tax authorities during examination, control and audit, when the conclusions obtained can be the subject of civil, criminal, arbitration, and administrative proceedings.

C v D: A Missed Opportunity to Clarify the Distinction Between Jurisdiction and Admissibility

The distinction between issues of jurisdiction and admissibility is at the heart of arbitration law due to the role it plays in defining the relationship between tribunals and the courts of the seat. Nevertheless, there has long been controversy as to the foundation of the distinction and on which side of the line the issue of alleged non‐compliance with pre‐arbitration steps falls. C v D offered a rare opportunity for an apex court to consider the distinction between issues of jurisdiction and admissibility, and to resolve these controversies. Whilst the judgment provides certainty on some matters, the reasoning adopted creates more confusion than it resolves and is unlikely to be the final word on the matter.

Interpretation of “Investments” and “Investors” in the Russia-Belgium/Luxembourg BIT: Seeking Ways to Resolve the Case of NSD

The paper addresses jurisdictional issues on the case of NSD initiating investment arbitration against Belgium/Luxembourg. Under the Russia-Belgium/Luxembourg BIT, the states undertake to prevent expropriation of investments and, if it does happen, to pay timely and fair compensation. Such “expropriation” may also occur due to sanctions. Being a Russian intermediate custodian for a number of foreign securities, the NSD has accounts with the centralized European securities Euroclear/Clearstream depositories. Since the inclusion of the NSD in the list of entities provided for in Annex I of EU Regulation no. 269/2014 in June 2022, transactions with the securities were suspended, NSD’s account with Euroclear/Clearstream was blocked. Because the NSD accounts with foreign securities depositories were blocked, it became impossible to transfer non-Russian securities from a securities account opened with the NSD to another Russian or foreign securities depository. One of the ways to challenge the consequences of Euroclear/Clearstream actions is to file a claim with the investment tribunal against Belgium/Luxembourg. The case has two potential solutions: mass claim from the end-investors or one single claim by the NSD as a “nominee holder” of the end-investors’ securities. The first option might seem time- and resource-costly, which is why a claim by the NSD might seem more attractive. Hence, using the interpretation instruments of public international law, the paper aims at assessing the perspectives of initiating investment arbitration proceedings by the NSD, thereby focusing on interpretation of the two central terms in the Russia-Belgium/Luxembourg BIT — “investor” and “investment”. The paper concludes that prima facie the investment tribunal would have jurisdiction over the case rationae personae nonetheless the “nominee holder” status of the NSD, as well as jurisdiction ratione materiae, where the blocked securities could constitute an “investment” in the sense of the BIT. Consequently, the paper defines the legal capacity of nominee holders to initiate arbitration. Since the issue has never been raised before, the paper draws an analogy with the case law on shell companies.

Судебная власть в системе защиты частных и публичных прав в условиях реализации антикризисных мер

The ways of improving the civil procedural and arbitration procedural legislation in order to improve the anti-crisis measures taken by the state are considered. It is proposed to exclude the possibility of both extrajudicial and judicial reconciliation of the parties to public law conflicts. It is shown that the mandatory pre-trial (claim) procedure for the settlement of civil disputes needs regulatory regulation and the consolidation of clear criteria for determining the proper fulfillment of the obligation to resolve the dispute. It is recommended to fix the presence of a notarized mediation agreement as a basis for refusing to accept a statement of claim. The legal uncertainty of the category “economic activity” is noted, which negatively affects the delimitation of the competence of courts of general jurisdiction and arbitration courts. It is proposed to strengthen the functions of the prosecutor in arbitration proceedings.

Частные определения в арбитражном процессе: некоторые вопросы правоприменения

One of the significant tools that ensure the fulfillment by arbitration courts of the task of strengthening the rule of law and preventing offenses in the field of entrepreneurial and other economic activities is the institute of private definitions. The article examines the specifics of the legal regulation of the use of private definitions in the arbitration process, the features of the relevant judicial practice and suggests ways to resolve the existing problems.

Penyelesaian Perselisihan Hubungan Industrial Melalui Mediasi Antara Karyawan Dengan Perusahaan Kopi Cap Kijang Bogor

Settlement of industrial relations disputes through mediation is a process of resolving conflicts between employees and the company with the help of a neutral mediator. The mediator acts as an impartial party and tries to facilitate dialogue between the two parties to reach a mutually beneficial agreement. Mediation in industrial relations can be an effective way to resolve disputes because it gives the parties involved greater control over the outcome than if decisions were made through arbitration or court processes. The purpose of this writing is to discuss the resolution of industrial relations disputes through mediation between employees and the Bogor Kijang Cap coffee company. The writing method used by the author is descriptive qualitative with case studies. The results of this research are that through effective mediation, problems in the industrial environment can be resolved in a fair and peaceful manner, creating a more harmonious and productive work environment for all parties involved. The agreements that have been made must be implemented carefully by both parties. This may involve changes in company policy, changes to employment contracts, or other actions necessary to ensure resolved issues do not re-emerge.

THE EFFECTIVENESS OF ARBITRATION AS AN EXPENSIVE ALTERNATIVE DISPUTE RESOLUTION

<p>Arbitration is an alternative non-litigation dispute resolution which has great demand but it has many weaknesses including the high cost of arbitration and decisions that cannot be executed immediately if registration has not been made at the District Court. Thus, the purpose of the analysis are 1) to analyze the juridical value of arbitration when compared to dispute resolution by litigation and 2) to analyze the effectiveness of arbitration as an effort to settle disputes outside of the court system. This study employed a normative legal methodology. The following are the outcomes of this study: Arbitration is a form of alternative dispute resolution that is widely utilized by individuals, individuals and legal entities, between legal entities, etc. in the context of commercial law. Arbitration is widely chosen because dispute resolution is carried out in a closed, flexible and faster way than litigation and has binding legal force. Arbitration has more value, if the process is carried out correctly, observant in analyzing the problems and fulfilling the elements of the rules regarding the execution of the arbitral award. 2) The arbitration will be legally binding if the parties comply with the arbitration rules in the country where the matter will be executed.. Conclusion: arbitration remains an effective non-litigation dispute resolution option but must pay attention to the arbitration process and provisions so that the parties' awareness will arise to register the results of the arbitration decision and comply with the arbitration law applicable in each country.</p>

Awarding costs where no arbitral jurisdiction on the merits: the making and enforcement of negative cost awards

Abstract Arbitral tribunals routinely award costs when they lack jurisdiction on the merits of a dispute. However, most of the identified awards—labelled here as ‘negative cost awards’—fail to adequately explain the source of the tribunals’ authority to award costs, either by omitting the reasoning altogether or by merely relying on the arbitration rules. If the arbitration agreement is found to be invalid or non-existent, it cannot empower a tribunal to award costs, and the arbitration rules ordinarily should not apply if the parties never agreed to them in a valid arbitration agreement. This notwithstanding, tribunals usually have a valid basis to award costs. This authority can be found in the arbitration agreement on the issue of costs, the competence–competence principle or, one way or another, national arbitration laws. Negative cost awards generally should be enforceable both under the New York Convention and the ICSID Convention, but the lack of an express finding of the arbitration agreement or another source of the tribunals’ authority to award costs may jeopardize the enforceability of such awards. Tribunals can avoid this problem by expressly explaining the basis of their authority to adjudicate costs in their awards.

State Regulation of Unauthorized Practice of Law in Arbitration And Mediation: The Trend Toward Permitting Multijurisdictional Practice in ADR

State Regulation of Unauthorized Practice of Law in Arbitration And Mediation: The Trend Toward Permitting Multijurisdictional Practice in ADR

Strengthening Ethical Standards in Legal Representation in Arbitration Proceedings Within A Global Context: Extracts From The P&Id Case

Strengthening Ethical Standards in Legal Representation in Arbitration Proceedings Within A Global Context: Extracts From The P&Id Case

Цифровизация гражданского судопроизводства Англии

Introduction: England is going through a period of radical reform of the civil justice system. A new landscape of digital dispute resolution is advancing, based on the idea that the transition from ‘paperbased’ resolution of legal disputes in physical courts to an online environment will help meet the dual requirements of expanded access to justice and significantly reduced system costs. As noted by the English authors, now the country has a semi‐digital justice system and hybrid ways of working. Supporters of the reforms define the current system as unstable and consider growing digitalization to be the only realistic solution. Purpose: to form an idea of the digitalization of civil proceedings in England based on analysis of scientific sources and regulations. Methods: empirical methods of comparison, description, interpretation; theoretical methods of formal and dialectical logic; special scientific methods such as legaldogmatic and the method of interpretation of legal norms. Results: the conducted research has shown that a modernization program is currently being implemented in the courts of England and Wales, focused on the transition from traditional ways of working to the use of digital methods. There have been created various pilot schemes aimed at improving access to justice, at facilitating preliminary resolution of disputes and resolution of disputes at early stages, at reducing the number of claims reaching the court, at increasing the economic efficiency of civil proceedings and judicial efficiency. Judicial reform has been carried out by the UK government for more than 25 years. But the civil justice reform program, with its commitment to digitalization and online process, began in earnest in 2014, when the Ministry of Justice announced that Her Majesty's Courts and Tribunals Service (HMCTS) would implement a reform program the central element of which would be the use of information technology, including online processes, to facilitate dispute resolution. The concept of online court was to create a convenient online system for processing simple monetary claims with a value not exceeding 25,000 pounds. Conclusions: in 2023, the following digital technologies were widely used by UK courts: video hearings (at the discretion of the court); creation of electronic packages of court documents (e‐bundles) and electronic filing of court documents; electronic communication between the parties and the court; online portals for processing various forms of claims; creation of an online system of protocols of preliminary actions (Pre Action Protocols), called online PAPs. Currently, various claim portals designed to handle claims of various types are operating or undergoing pilot testing in the country: the Online Civil Monetary Claims (OCMC) portal (processing of claims for a certain amount of money limited to 25,000 pounds); the Damages Claims Portal (DCP) (processing of claims for damages in the district court); Official Injury Claim (OIC) portal (processing of accident injury claims). An important event was the creation of the Online Procedure Rule Committee (OPRC) in accordance with the Judicial Review and Courts Act 2022. This law created the basis for the development of new, simplified Rules for online services in civil, family, and arbitration proceedings. The Recommendations of the UK Jurisdiction Taskforce (UKJT) should also be taken into account with regard to the use of blockchain technologies in legal proceedings and judicial practice on this issue. The final report of the UKJT was published on June 28, 2023. The final position of the UKJT was to support common law as the primary means to be used to resolve claims against cryptocurrencies.

Национальные интересы и их охрана в цивилистическом судопроизводстве

Under civil, arbitration and administrative procedures, many cases are considered in which one of the objects of protection is state (national) interests. The work provides evidence that a number of legal relations regulated by the Civil Code of the Russian Federation are of a public-law nature. In this case, disputes arising from these relations are resolved according to the rules of action proceedings in civil and arbitration procedures. The author proves that the state, acting as a participant in civil-law relations, nevertheless implements public-law functions ensuring national interests. At the same time, there are no special rules aimed at protecting these interests in procedural legislation. The author developed an approach to understanding the nature of national interests, including the traditional spiritual and moral values enshrined by the decree of the President of the Russian Federation. Based on the analysis of the legal positions of the Supreme Court and Constitutional Court of the Russian Federation, the doctrine of civil and arbitration procedures, and administrative proceedings, private and public-law conflicts are differentiated. The author proposed specific procedural mechanisms for protecting national interests in civil proceedings: accretion of the procedural power of the court when considering cases with the participation of the state (going beyond the asserted claims and arguments of the parties, disclosure of evidence on its own initiative); expanding the functions of the prosecutor in the field of civil procedural jurisdiction (in particular, giving him the right to apply for defense of the rights and interests of military personnel); consolidation of special procedural responsibilities of state authorities, local government authorities, officials as participants in civil and arbitration proceedings. It is also proposed to prohibit the conclusion of settlement agreements in cases involving the state.

О некоторых аспектах судебной защиты публичных прав в России

The article deals with the problem of procedural features of consideration by courts of cases of a public law nature. The author proceeds from the fact that the state, its subjects, municipalities represented by the relevant bodies and authorized officials are the obligatory party of the public law relationship. At the same time, in a public legal relationship, its subjects are in a relationship of power and subordination. The specificity of public law is due to its belonging to an unlimited circle of persons, which naturally produces the impossibility of disposing of it by a specific, individual subject, including in the procedural sphere. Because of this, procedural administrative rights (refusal of a claim, recognition of a claim, the right to conclude a settlement agreement) in proceedings on cases arising from public legal relations (administrative proceedings) should be limited, and judicial control in their commission should be strengthened. The author differentiates cases subject to consideration according to the rules of administrative proceedings into administrative and public law cases, arguing that in public law cases, the mandatory participation of the prosecutor should be fixed, with a positive conclusion of which the parties have the opportunity to perform administrative procedural actions. It is noted that the state, its subjects and bodies can become participants in civil law relations, disputes from which are resolved in civil and arbitration proceedings, claims proceedings, the rules of which should also be modified taking into account this circumstance. Thus, it is proposed to fix the mandatory participation of the prosecutor in lawsuits, if one of the parties to the legal conflict is a public authority.

Innowacyjność w szwajcarskim postępowaniu arbitrażowym – uwagi de lege ferenda dla polskiego ustawodawcy

The Swiss Rules on International Arbitration, which came into force on June 1, 2021, did notintroduce groundbreaking changes for arbitration, however, it should be noted that they containnumerous facilities for dispute resolution. Such regulations are undeniably aimed at streamliningand increasing the efficiency of arbitration proceedings with a particular focus on multi-agreement and multilateral arbitration. The Swiss legislature has also decided to bring arbitration proceedings in line with the latest arbitration standards and technological possibilities by introducing, among other things, the possibility of conducting hearings by means of an ICT system.

Proceduralni uslovi za raskid ugovora o međunarodnoj prodaji robe

Avoidance of a contract is a unilateral declaration of will by one of the contracting parties which, if validly made, produces an effect on the contract by terminating it. The UN Convention on Contracts for the International Sale of Goods (the Vienna Convention, hereinafter: the Convention) contains only one article which regulates the procedural conditions for terminating the contract in a single yet concise sentence. According to Article 26 of the Convention, the declaration of avoidance of the contract is effective only if the other contracting party is informed about it. The Convention does not provide for automatic termination of the contract, regardless of whether the substantive law conditions for avoidance have been met. Article 26 of the Convention stipulates that the contracting party must declare the termination of the contract and must notify the other party thereof. The purpose of the notice of avoidance is to inform the other contracting party of the status of the contract. In the absence of a notice, the declaration of avoidance shall have no effect. The party exercising the right to avoid the contract is not obliged to initiate appropriate court or arbitration proceedings in relation to that issue, although it certainly has the right to notify the other party of the avoidance through a lawsuit to the competent court or arbitration. The notice of avoidance may be given in any form. However, it must contain a sufficient degree of clarity about the party's decision to no longer be bound by the contract and to consider the contract terminated. The notice of avoidance must be unconditional, final, express and unambiguous. There is a common agreement in practice and legal doctrine that such a statement can be given implicitly, through conclusive actions. However, such a statement must be clear, unambiguous, explicit and unconditional, in order to create the belief in a reasonable person that the contract has been terminated. The Convention does not regulate the possibility of revoking the declaration of avoidance. In this regard, there are several opinions in relevant literature, but one should lean towards the one based on the fact that revocation is possible until the moment when the other contracting party receives the notice of avoidance of the contract.

Construction of Provisional Arbitration System in China under the Background of Revision of “Arbitration Law”

Construction of Provisional Arbitration System in China under the Background of Revision of “Arbitration Law”