Commercial Arbitration Research Articles

Trade agreements, digital development and international commercial arbitration

The purpose of the article was to study the problems that arise during the settlement of disputes in the order of international commercial arbitration. The article used general scientific (dialectic, analysis and synthesis) and special legal (comparative legal, formal-logical, systemic, hermeneutic, axiological) methods. In the results of the research, it was established that the characteristic features of electronic development contracts in international trade are: electronic forms of conclusion of pre-contractual and contractual communication, making amendments and additions to the contract. Taking into account the features that accompany the chosen form of contracting prevails the need to refer to the provisions of the applicable legislation on tax and customs legislation and protection of personal data, etc. The conclusions state that the main problems in the resolution of disputes arising from e-commerce contracts, in international commercial arbitration, are the issues of requirements and validity of the arbitration clauses contained in such contracts, the importance of the agreements reached in the pre-contractual stage in the subsequent resolution of disputes between the parties and the problems of proof arising from the peculiarities of entering into relevant contracts

Vanishing Treaty Claims: Investors Trapped in a Temporal Twilight Zone

Abstract The recent surge of arbitral awards forging new paths in the less-explored frontier of jurisdiction ratione temporis is laudable. Yet, if left unchecked, the trajectory of jurisdictional barriers expanding in depth and difficulty threatens to shrink the road of arbitration to the eye of a needle. Two emerging rules are especially worrisome: first, the right to claim under BITs vests exclusively with the investor holding the investment at the date of breach; second, the right is extinguished upon disposal of the investment. Concomitantly, once a pre-existing foreign investment is impaired by State measures, a temporal twilight zone is formed between the date of breach and date of institution of arbitration. The right to claim risks vanishing into a legal black hole along with the investment. Impecunious investors are left with a binary choice: litigate or mitigate. Ultimately, the broader lesson is for investment tribunals to avoid two common missteps when examining temporal objections: overreach of jurisdiction ratione temporis into areas more appropriately covered by the other jurisdictional dimensions (ratione materiae and ratione personae) and doctrine of abuse of process; and overreliance on principles transposed from private commercial arbitration (succession and separability).

THIRD-PARTY FOUNDING IN INTERNATIONAL COMMERCIAL ARBITRATION: IT IS ABOUT TIME FOR REGULATIONS

Third-party funding (TPF) is a species of the common law doctrine of maintenance and champerty. With the burgeoning of global trade, the need for funding arbitral proceeding of high magnitude have witnessed an upward trend. TPF is a method wherein the impecunious party to the dispute enters into a contract with a third-party, who is not a party to the arbitration agreement, to finance the arbitration proceeding and run the risk of either paying or receiving the proceeds, costs, or award awarded against or in favor of such party. TPF, on one hand, provides a gateway to justice to the impecunious party and on the other hand, causes an impediment to the recognition and enforcement mechanism of arbitral awards. TPF flourishes as an alternative to support arbitral proceedings by acting as an investment for the financers but what impact it has on the market, in the long run, is still unclear. TPF assists the struggling party to appoint highly qualified specialists and a learned arbitrator through financial assistance but restricts the party autonomy and raises justifiable doubts as to the independence and impartiality of the arbitrator due to the leverage the financer holds in such an arrangement. Last but not least, TPF may also, at times, result in the disclosure of attorney-client communication to the financer. The present article is an analytical study of TPF as a mechanism in international commercial arbitration and what challenges it poses to its practice. Moreover, the article places reliance on the work of various scholars, and adopting the inductive approach of reasoning, reflects upon the plausible remedies for challenges that TPF poses to international commercial arbitration. Keywords: Third-Party Funding; Commercial Arbitration; International; Challenges; Regulation.

Recent Developments of Third Party Joinder in International Arbitration

This article analyses the impact of the Singapore High Court decision CJD v. CJE and another [2021] SGHC 61 on the highly topical issue of third party joinder in international commercial arbitration. In its 2021 decision, the court applied a strict yardstick in view of party autonomy when interpreting consent requirements for joinder under the London Court of International Arbitration Rules 2014. A closer comparative analysis of the procedural rules of leading international arbitration institutions identifies the judgment’s guidance to similarly constructed joinder rules, such as the International Chamber of Commerce Rules 2021. The comparative analysis recognizes a larger growth of caseloads in Asia and results suggest an incrementally developing preference for joinder rules which are constructed in a wide manner. This includes the arbitral tribunal’s power to allow third parties to join already commenced arbitration proceedings based on a prima facie test, alongside express unanimous parties’ consent. International commercial arbitration, multi-party contracts, third party joinder, international arbitration institutions, institutional arbitration rules, dispute resolution, Singapore, private international law, comparative law

Alternative Dispute Resolution in the Contemporary World

Rule of law and ADR are one of the benchmark in determining the underdeveloped world from the developed. Therefore, in today’s contemporary world, the role and application of alternative dispute resolution (ADR) is increasingly attracting attention in legal and academic discourses. Its application in various jurisdictions particularly is said to strengthen the rule of law. From a development perspective, the main aim of ADR is to increase the possibilities and opportunities for the underprivileged to attain maximum social, economic and legal rights in their daily lives. This in turn helps the rule of law to sustain and consolidate contributing to human security, well-being, and dignity- a vital component for progress and socio-economic developed. ADR modes in a supplementary component in legal domain such as commercial arbitration and court-annexed mediation in civil litigation, also provides immense benefits for development.The purpose of this paper is to briefly review the efficacy of ADR modes in different jurisdictions. It then examines how ADR impacts the rule of law. The paper finds that the adoption of various ADR modes has made a considerable impact in various jurisdictions.

ZF Automotive U.S., Inc. v. Luxshare, Ltd. (U.S. Sup. Ct.)

Under 28 U.S.C. §1782(a), the U.S. Congress permits federal district courts to order testimony or the production of documents “for use in a proceeding in a foreign or international tribunal.” For the past two decades, U.S. Courts of Appeals have been split over whether 28 U.S.C. §1782 applies to private international commercial arbitrations. On June 13, 2022, in a unanimous opinion delivered by Justice Amy Coney Barrett, the Supreme Court of the United States held that it does not. To the extent that §1782(a) may apply to investor-state arbitrations, the Court held that the scope of the statute is limited to adjudicative bodies imbued with governmental or intergovernmental authority. Access to U.S. discovery procedures has thereby been narrowed significantly in the context of international arbitration.

When International Commercial Arbitration meets China’s sanction laws: living together but remaining apart?

Abstract In the light of China’s newly installed sanction laws recently being considered by Chinese court in a judicial review procedure for an arbitral award, this article examines two aspects of these laws that have been largely overlooked by previous research: their private international law nature and the impact they have on the enforcement of foreign arbitral awards. In their function, the Chinese sanction laws should neither fulfil the role of rules established to utilize private persons to implement Chinese state policy, nor, in their application, contradict China’s claimed role in the international legal and political framework. Accordingly, two routes are offered as to how these laws should be applied: first, the legal restrains on private enforcement of the sanction laws should be made available; and secondly, China should ensure that its sanction laws do not compromise the New York Convention’s remit.

Development issues of international commercial arbitration

2022–2026 йилларга мўлжалланган Янги Ўзбекистоннинг тараққиёт стратегиясига мувофиқ, юртимизда ҳуқуқ устуворлигини таъминлаш, суд- ҳуқуқ тизимини такомиллаштириш, бизнес юритиш шароитларини яхшилаш ва инвестициявий жозибадорликни оширишга доир муайян чора тадбирлар амалга оширилмоқда. Хусусан, низоларни ҳал этишнинг муқобил усулларига алоҳида эътибор қаратилаётганлиги фуқаролар, тадбиркорлар, хорижий инвестор ва Ўзбекистон билан савдо-иқтисодий ҳамкорликка киришувчи шахслар учун вужудга келиши мумкин бўлган низоларни ўзларига қулай усулда ҳал этиш имкониятини яратади

Features of creating the international commercial court as an alternative to the Tashkent international commercial arbitration

Ушбу мақолада Тошкент халқаро тижорат арбитраж марказининг муқобили сифатида хaлқaро тижорaт судини ташкил этишнинг ўзига хос хусусиятлари хорижий тажриба асосида таҳлил қилинган. Мазкур таҳлиллар натижасида Ўзбекистонда хaлқaро тижорaт судини ташкил этиш юзасидан бир қатор таклиф ва тавсиялар баён этилган

Arbitraj kelishuvlari va yurisdiktsiya xalqaro tijorat arbitraji

The text provides a comprehensive analysis of the role and evolution of international commercial arbitration as a method of alternative dispute resolution. It emphasizes the growing preference for arbitration in international commerce due to its speed, confidentiality, and perceived fairness. The text also highlights the efforts made by the Republic of Uzbekistan to develop its arbitration infrastructure, including its adherence to international conventions and the establishment of the Tashkent International Arbitration Center. The article further delves into the legal intricacies of arbitration agreements, discussing their validity, enforceability, and the formal requirements they must meet. It concludes by noting the ongoing changes in international standards and laws governing arbitration, suggesting that these are in response to the changing needs of the global market

O‘zbekiston xalqaro tijorat arbitraji huquqidagi bir xillik va xil-xillik

In developing countries, capacity-building among judges, lawyers, policymakers, and other stakeholders will be an important means of maintaining sustainable diversity in international commercial arbitration (ICA). In remarks delivered at a Hong Kong University conference on arbitration reform in the Asia-Pacific, which took place on 27 October 2015, Judge Renaud Sorieul, then UNCITRAL Secretary, observed that the Model Law was not intended to set up identical systems of ICA law globally. While the adoption of the Model Law can ensure a degree of uniformity and harmonization among ICA regimes, there can still be significant differences between one Model Law state and another

Creating a legal mechanism for the relationship between international commercial arbitrations and state courts - a pledge to ensure the effective protection of investors' interests

Таъкидлаш жоизки, низоларни ҳал этишнинг муқобил усулларидан кенг фойдаланиш учун зарур ташкилий-ҳуқуқий шарт-шароитларни яратиш Ўзбекистоннинг кейинги беш йилликда ҳам устувор вазифаларидан бири бўлиб қолмоқда 1 . [1 2022 – 2026 йилларга мўлжалланган янги Ўзбекистоннинг тараққиёт стратегияси II боб, 15-мақсад, https://lex.uz/docs/5841063] Маълумки Халқаро тижорат арбитражи халқаро тижорат фаолияти соҳасида вужудга келувчи чет эл элементи билан мураккаблашган хусусий ҳуқуқий низоларни нодавлат тизимида кўриб чиқувчи механизм ҳисобланади. Ушбу механизм низоларни ҳал этишнинг муқобил усуллари бўлиб, фуқаролар,тадбиркорлар, хорижий инвестор ва Ўзбекистон билан савдо иқтисодий ҳамкорликка киришувчи шахслар учун вужудга келиши мумкин бўлган низоларни ўзларига қулай усулда ҳал этиш имкониятини яратади

International Commercial Arbitration as a Modern Self-Regulation Tool in Hybrid War

One of the tools of self-regulation, which helps to settle a dispute between commercial counterparties from different states is international commercial arbitration. International commercial arbitration is an alternative to the dispute resolution process in state courts, that is – it is an alternative to the mechanisms of the state process. The problem of considering international commercial arbitration through the prism of self-regulation has not been studied from all perspectives and diversity. This issue is especially relevant when businesses seek protection of their violated rights to international commercial arbitration in a hybrid war. It is important to examine: how a self-regulatory instrument is able to implement protection when war is waged. The question arises whether private jurisdiction can provide adequate protection to commercial entities. What is the role of international commercial arbitration? How the public authorities will implement the decisions made by the arbitration against the aggressor state (the state violating investment obligations). Settlement of disputes in a hybrid war can be called “hybrid investment disputes” or “hybrid commercial disputes” depending on the object of the dispute.

Legal prerequisites for consideration and settlement of disputes in international commercial arbitration

The article examines the problematic issues of the grounds for litigation in international commercial arbitration. The urgency of this topic is due to the need for a lack of clear definition of the prerequisites for resolving disputes, as well as the procedure for their use in the practice of international commercial arbitration. In addition, the problematic aspects of dispute resolution in international commercial arbitration are analyzed and procedural measures for their resolution are identified.
 To achieve this goal, the material preconditions for dispute resolution in the ICA were studied and the procedure for resolving disputes was determined. The preconditions for transferring a dispute to international commercial arbitration, which are the advantages of arbitration compared to state courts, are, first of all, that it provides a more acceptable, accessible and simpler procedure for resolving disputes compared to state courts. In other words, it is a procedure established by the parties to the dispute, which in general can be adequate and adapted to make agreed decisions. Even when the parties turn to a permanent commercial arbitration, which has its own rules of procedure, they can provide for arbitration. The UNCITRAL Arbitration Rules of 2010 stipulate that when the parties decide to submit disputes to arbitration in accordance with these Rules, they shall be considered in accordance with these Rules.
 The study identified a number of major risks and difficulties faced by the party in applying to a state court: ignorance of the procedure required for a foreign state court; the obligation to conduct the proceedings in the language of the court’s location; the existence of several instances and the procedural formalism that occurs when applying to the general courts; judges do not always have the appropriate competence to deal with disputes arising from foreign trade; gathering evidence and evaluating it on the basis of the national legal system.
 The study concluded that the benefits of international commercial arbitration, in the presence of prerequisites for litigation, give much better benefits for litigation, which forms its authority among the relevant categories of legal entities and individual entrepreneurs.

Position of Bangladesh in International Commercial Arbitration: An Analysis

Arbitration has become an essential component for guaranteeing effective dispute resolution in international trade and commerce. The business community places trust in the arbitral process so that the whole trade system can be expanded in spite of the challenges across the borders. In fulfillment of the international community with the New York Convention and UNCITRAL Bangladesh has enacted legislation on arbitration law namely The Arbitration Act, 2001. With this Act, Bangladesh has kept peace with the recent trends in the field of international commercial arbitration with the rest of the world. The new Act is based on the UNCITRAL Model Law on International Commercial Arbitration, (1985) and consolidates the laws relating to both national and international commercial arbitration. The new Act creates an integrated legal regime for arbitration in Bangladesh which has also been a trend in recent times elsewhere. Bangladesh has enacted its arbitration laws along the outlines of the UNCITRAL Model Law. The enactment of law relating to international commercial arbitration in Bangladesh by the Arbitration Act, 2001 gives Bangladesh a modernization as a safe place for dispute resolution in the field of international trade, commerce, and investment.

ISDS and Nazis or History Without Context: A Reply to Gary Born

Gary Born’s article ‘The 1933 Directives on Arbitration of the German Reich: Echoes of the Past?’ fascinates for good and not so good reasons in almost equal measure. The author skillfully illuminated a rarely-discussed episode of arbitral legal history and aimed to apply its lessons to current debates surrounding investor-state dispute settlement (ISDS) reform. The overarching argument is that criticism and/or reform of investor-state arbitration is reckless and reminiscent of National Socialist efforts to curb private-public arbitration – risking undermining the rule of law and even allowing ‘history to repeat itself’. As much as the legal history part is a worthy contribution, this later part is laden with problematic claims and unfortunate parallels. The criticisms and potential (fairly limited) reforms of ISDS are portrayed as missteps towards a totalitarian abyss. Yet as much as investor-state arbitration can sometimes help promote the rule of law, it is not an indispensable ‘bulwark’ against state oppression. ISDS is a historically recent invention, with an even more recent case law. It deals with wide-reaching and objectively often controversial substantive rules, making reform proposals unsurprising. Crucially, even if investorstate arbitration disappeared completely, the history of Nazi horrors would not repeat itself. commercial arbitration, investor-state arbitration, history of arbitration, ISDS reform, Nazism

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.

The Paraguayan experience in modernizing its secured transactions legal framework

Abstract In the past decades, numerous countries of the five continents have been substantively modernizing their private law legal framework in topics related to commercial law, including secured transactions. Paraguay has not been an alien to this phenomenon and has adopted numerous harmonizing instruments developed by international organizations such as UNCITRAL, Unidroit, and the Hague Conference on Private International Law in commercial arbitration, international contracts, and the sale of goods, among others. This brief contribution describes the Paraguayan situation of access to secured credit with particular emphasis on small- and medium-sized enterprises and the legal shortcomings that obstruct financing backed by movable assets. Further, the article also discusses the road travelled to modernize the Paraguayan legal framework on secured transactions and makes recommendations for the future based on the lessons learned from the process.

Intelligent Matching System of Clauses in International Investment Arbitration Cases Based on Big Data Statistical Model

Abstract The international investment arbitration system between investors and host countries originated from the international commercial arbitration system. International investment disputes are usually disputes caused by the host country’s policies to protect public interests and the dissatisfaction of private investors caused by regulations. There are few methods for intelligently recommending judgment documents based on factual texts in international investment arbitration cases. Because of this, this paper proposes a recommendation algorithm for international investment arbitration adjudication documents based on multimodal feature fusion. This paper teaches the structural information of paragraph tags and the relationship between paragraph contexts and incomplete judgment documents. The algorithm achieves a good structuring effect of international investment arbitration documents.

Commercial arbitration of air cargo contracts under the Warsaw Conventions 1929, Montreal 1999 and National Legislations

The research dealt with the position of international conventions and related national legislation, including Bahraini and Emirati law, of the possibility of resorting to arbitration as a means of resolving disputes in air transport contracts for goods because of its ease of procedures and speed of adjudication of the dispute. In our research, we focused in the introductory chapter on the fundamental aspects and characteristics of the concept of the air transport contract, the position of international conventions, particularly the Montreal Convention 1999. However, devoted the first chapter to clarifying the objective rules of the contract and its legal nature, which approach the nature of compliance contracts, the role of the will of the parties to the arbitration agreement and other legal issues. While in the second chapter, we discussed the procedural rules and conditions of the arbitration agreement, and we found that there were different conditions on them and others agreed between the Warsaw Convention and the Montreal Convention. As well as the role of the national judiciary, supporting and aiding through the implementation of the arbitration judgment and the monitoring of the arbitration judgments issued. We concluded the research with a conclusion and a set of findings and recommendations.