Concept Of Arbitration Research Articles

The Concept of Arbitrability under the New York Convention: The Quest for Comprehensive Reform

The Concept of Arbitrability under the New York Convention: The Quest for Comprehensive Reform

Research on the Modernization of China Foreign Commercial Arbitration: From the Perspective of Building an International Commercial Arbitration Center

Under the background of social change and the great development of "Belt and Road" policy, China's international commercial arbitration is facing a higher level of development needs. In order to solve the existing problems, draw on the experience of the world's advanced international arbitration centers, improve the concept of arbitration, and improve the level of arbitration services, China should take the goal of building a China international commercial arbitration center comparable to the world-class level, and constantly explore the development path of arbitration. This paper analyzes the present situation and trend of international commercial arbitration in China, discusses the connotation and value of China international commercial arbitration center, put forward from government relations, institutional development, system architecture, modernization can assign four aspects to improve the arbitration center construction scheme, and innovatively put forward the horizontal and vertical two lines and special assigned to the development of the framework. Accordingly, China's international commercial arbitration system should be continuously improved, the credibility and discourse power of China's international commercial arbitration should be enhanced, and China should build an international arbitration brand with Chinese characteristics.

The Effect of Arbitration on the Islamic Political System

The current research aims to elucidate the concept of arbitration, its legitimacy, scope, significance, the extent of obligation, and its impact on the internal political system of the state, particularly constitutional issues related to assuming power and resolving internal political disputes within the administration of the Muslim state. The study examines the influence of arbitration on foreign policy matters involving wars or international conflicts over land or water, providing real life examples from the time of the Prophet, his companions, and his followers. The current study concluded that arbitration could have a significance impact on resolving both internal and external political disputes if employed appropriately and optimally. The study emphasizes the risk associated with failing to arbitrate political issues, which may result in adverse consequences such as widening the conflict gap among the opponents.

INVESTMENT COURT SYSTEM SEBAGAI ALTERNATIF PENYELESAIAN SENGKETA PENANAMAN MODAL ASING

Investment Court System (ICS) proposed by the European Union (EU) has been ratified through Bilateral Investment Treaty (BIT) between the EU and several partner countries such as Canada, Vietnam and Singapore. A study is needed to get an idea on the ICS mechanism. This is a normative research. The result shows that although there is a mechanism that is not in accordance with the concept of arbitration, the ICS decision is enforced as an arbitration award and is subject to the 1958 New York Convention. Indonesia as one of the countries currently still negotiating with the EU in the formation of an FTA is also still reviewing the adoption of ICS into the text agreement. In addition, although the background and objectives of the ICS are positive, there are still some points of weakness in the provisions of the ICS that will result in obstacles in their implementation which can be seen from the legal, political and technical side.

Institutional Arbitration versus Ad Hoc Arbitration: Determining the Right Choice

The roots of arbitration can be found in dispute resolution, but there is much more to the development of arbitration in different countries than just that. Arbitration, along with the vast majority of other legal notions, is seen as a gift from Western culture by the majority of nations in Asia. This is in contrast to the Western nations, which have a personal relationship to the concept of arbitration. The relevance of arbitration became more apparent through time, which resulted in the adoption of formats that were more flexible. Parties have the option of selecting either institutional or ad hoc arbitration in the vast majority of countries on the international stage. In ad hoc arbitration, as opposed to institutional arbitration, the parties negotiate and agree on the fees directly with the arbitrators. Institutional arbitration is more common. Because of this, the parties have the ability to negotiate a lower price for the item. Both ad hoc and institutional arbitrations are recognized as valid forms of dispute resolution. After all of that has been said, it has become quite clear that arbitration as a method of conflict resolution is desperately needed. In this article, the author makes an attempt to compare and contrast the effects of ad hoc and institutional arbitration, and then makes a case for institutionalization of ad hoc arbitration.

AN EXPLORATORY STUDY OF MACAO'S ROLE AS AN ARBITRATION SEAT AND VENUE FOR SINO-LUSO COMMERCIAL DISPUTES

Objective: Over the past decade, arbitration has grown in popularity as a method of resolving commercial disputes worldwide. However, this practice is relatively new in Macao SAR. Recently, official plans were announced to make Macao as a seat of arbitration for commercial disputes between China and Portuguese-speaking countries (Hereinafter PSCs). This article is dedicated to explores the possibility of Macao undertaking and implementing such a role. Accordingly, this article addresses the following issues: What are the strengths and weaknesses of Macao as a seat and eventually as venue for hosting international commercial arbitration between Chinese and PSCs entrepreneurs? Methodology: A mixed-method approach of legal doctrinal and empirical research was used in this article. We first included a thorough study of the concept of arbitration followed by analysis of various legal journals and legislations, including Macao, China, and PSCs’ arbitration laws. An empirical research was then used to collect data by surveying and interviewing with both lawyers and arbitration practitioners from Macao, China and PSCs. Results: This article argues that the strength of Macao resides in the similarities between its legal system and that of the China and PSCs and the languages advantage (Chinese and Portuguese both official languages). In spite of this, arbitration is still relatively underutilized in the region, and there is a limited number of arbitrators and legal professionals with bilingual proficiency. Contributions: This article contributes to the identification of the opportunities and challenges that Macao faces in its potential future development as a seat/venue of arbitration between China and the PSCs.

Arbitrase Sebagai Alternatif Penyelesaian Perkara dalam Hukum Positif dan Hukum Islam

The sharia-based economy in Indonesia has experienced significant development. Along with the growth of the sharia economy, the emergence of disputes between the parties to the transaction is also increasing. On the other hand, resolving disputes through the courts requires a lot of time and money. Thus, alternative dispute resolution (APS) emerged, one of which was arbitration. This study aims to describe the concept of arbitration in positive law and tahkim in Islamic law. This research is a qualitative research using library research. This study uses a normative juridical approach. The results of the study show that arbitration and tahkim are both alternative dispute resolutions by appointing a third party as arbitrator or judge. The difference is in the requirements to become an arbitrator / judge where in Islamic law there is a requirement to be Muslim. Regarding its authority, arbitration is only authorized in the civil sector based on an arbitration agreement, while in tahkim its authority is broader in terms of muamalah, social and even political. Another difference is that in positive law the court is only authorized to execute the arbitration award if requested by one of the parties. Meanwhile, in Islamic law, the court has the authority to cancel the decision of the tahkim if it is contrary to the provisions of syara'.Keywords: tahkim, civil disputes, sharia economics

A Critical Analysis of Arbitration as an Instrument for Resolving Commercial Dispute in Nigeria

This paper is a critical analysis of arbitration as an instrument for resolving commercial dispute in Nigeria. The Nigerian courts considering the precarious situation finds itself in the dispensation of justice moreso in the resolution of commercial disputes. The works examine the concept of arbitration, overview of alternatives dispute resolutions (ADR), the legal and institutional framework for the regulation of arbitration in Nigeria, types of arbitration among others. The work underscored the prospects and future of arbitration in the areas of party autonomy, third party funding, and online arbitration, the availability of injunctions and interim reliefs within the framework of arbitration and the upsurge of arbitral institutions. The paper recommends that for arbitration to be properly harnessed and enhanced all hands must be on deck – the parties, the courts, counsel all have a role to play.

ARBITRAGE, AN EFFICIENT ALTERNATIVE FOR RESOLVING TRADE DISPUTES IN ALBANIA, COMPARATIVE OVERVIEW WITH AUSTRIA, ARMENIA, ARGENTINA AND BULGARIA.

Arbitration is a new form of dispute resolution in the commercial field in Albania. Economic development has led many international companies to invest in Albania. This topic will focus on the concept of arbitration as the public interest in recognizing this new form of dispute resolution is broad, but what never changes is the argument as to why we turned to arbitration. The parties set the arbitral tribunal in motion and as such have the burden of proof to prove that their claims are based on facts and evidence. Of particular importance in this paper will be the advantages and disadvantages of arbitration as a way of resolving disputes. Another special aspect where we need to dwell will be the contribution of national courts in resolving arbitration disputes. This paper will deal extensively with the place it occupies in Albanian legislation. An important place of this paper will be the analysis of practical cases as a way of combining theory and practice. It would be of particular interest to make comparisons between Albanian legislation and Austria, Argentina, Armenia and Bulgaria. The reason for this comparison is to bring about a radical change in the resolution of trade disputes through arbitration. An important place of this paper will be the analysis of practical cases as a way of intertwining theory and practice. It would be of particular interest to make comparisons between Albanian legislation and Austria, Argentina, Armenia and Bulgaria. The reason for this comparison is to bring about a radical change in the resolution of trade disputes through arbitration. An important place of this paper will be the analysis of practical cases as a way of intertwining theory and practice. It would be of particular interest to make comparisons between Albanian legislation and Austria, Argentina, Armenia and Bulgaria. The reason for this comparison is to bring about a radical change in the resolution of trade disputes through arbitration.
 Albania needs the recognition of arbitration as an opportunity to resolve the dispute as every action affects the image of the company but also of our country. Models from different countries will help us bring a new but above all efficient approach

Lessons from the US: Arbitrability of oppression and mismanagement in India

The present paper delves into an often-discussed question, whether oppression and mismanagement disputes are arbitrable. Public policy concerns are cited as the primary reason for justifying the non-arbitrability of oppression and mismanagement disputes. However, while offering such an argument, what needs to be considered is whether an allegation of oppression and mismanagement in itself amounts to oppression and mismanagement and thereby pushing the tribunal to give up its jurisdiction (which is perverse and completely against the principles of competence–competence). In this paper, a thorough analysis of the concept of arbitrability has been undertaken where arguments beyond the notion of arbitrability being limited to public policy considerations have been explored. The research specifically focuses upon how arbitrability grew in terms of a tribunal’s power vis-a-vis à statutory remedy (courts), by looking at the growth of antitrust and securities transaction disputes in the United States of America.

Validity of Arbitration Agreements in Turkish Law and Asymmetric and Pathological Arbitration Clauses

Çok eski tarihlerden günümüze kadar varlığını koruyan tahkim, devlet yargısına alternatif bir çözüm yoludur. Asıl olan egemenin bünyesinde yargı erkinin bulunmasıdır. Yargı devletin tekel niteliğinde bir faaliyettir. Ancak bazı uyuşmazlıkların devlet yargısında çözümlenmesi yerine; özel hakem kurulu tarafından karara bağlanması da istenebilir. Hakem veya hakem kurulunun kesin ve bağlayıcı bir karar taraflarca istenmiş ise, tahkim kavramı ortaya çıkar. Bu durumda asıl olan devlet yargısıdır. Ancak istisnai olarak taraflar tahkim yargısını seçebilirler. Bu yargılama, devlet yargılaması olmadığı için, her ne kadar taraflara bir esneklik tanısa da, bazı şartlara tabidir. Tahkim sözleşmesinin, yazılı şekilde olması, belirli veya belirlenebilir bir konu üzerine olması ve tahkim iradesinin açık ve kesin olması gerekir. Tahkim iradesinin açık ve kesin olması ifadesi üzerinde durulmalıdır. Bu kavram uygulamada sorunların doğmasına neden olabilmektedir. Örneğin, asimetrik ve patolojik tahkim kayıtları taraf iradesinin açık ve kesin olmadığı gerekçesi ile geçersiz kabul edilmektedir. Bu durum taraf iradesinin yorumlanması, sözleşmenin ayakta tutulması gibi temel ilkeler ile çelişmektedir. Bu sebeple bu çalışmamızda, asimetrik ve patolojik tahkim şartlarının geçerliliği incelenmektedir. İlk olarak, tahkim sözleşmesinin özellikleri açıklanmaktadır. Ardından asimetrik ve patolojik tahkim kayıtlarının ne olduğu ve çeşitleri ele alınmaktadır. Bu çalışma, kümülatif olarak asimetrik ve patolojik kayıtların geçerli sayılıp sayılmayacağı sorunu üzerine durulmaktadır.

A contemporary look at Qatari arbitration of civil and commercial materials from a future perspective: نظرة معاصرة في التحكيم القَطَري للمواد المدنية والتجارية وفق رؤية مستقبلية

The judiciary is the main means of resolving disputes, but with the development of national and international trade and investment conditions, there is an urgent need to find alternative ways to resolve disputes and keep pace with these developments in world trade. Although arbitration as an alternative means of dispute resolution is older than the judiciary, the old concept of arbitration was closer to reconciliation than conciliation. However, the development of arbitration with the development of international trade and the global investment movement, so that most of the laws of countries around the world have devoted a section to the regulation of arbitration and others to the enactment of laws. This development was illustrated by arbitration procedures and the formation of the arbitral tribunal, which was similar to judicial procedures and formations, and then international conventions and treaties strengthening arbitration provisions and ensuring their implementation. It is no longer an exaggeration that international arbitration is no longer an alternative means of resolving international commercial disputes. On the contrary, it has become the main means of resolving these disputes and, unfortunately, has many disadvantages in the judicial system. It is the prolongation of the conflict and the problems and difficulties of implementation.

Арбітраж як суб’єкт правозастосування при вирішенні міжнародних комерційних спорів

Метою статті є дослідження механізму встановлення юрисдикції арбітражного суду на вирішення комерційних спорів, аналіз поняття та змісту концепції арбітрабільності.
 Наукова новизна полягає у дослідженні особливостей делегування міжнародному комерційному арбітражу правозастосовчих функцій державними судами. Так, стверджується, що, делегуючи такі функції, держава автоматично не виключає вказані категорії спорів з-під юрисдикції судів. Лише при наявності письмової арбітражної угоди, яка відповідатиме вимогам чинності, дійсності та виконуваності, дотримання вимог арбітрабільності спору, а також реалізації однією зі сторін наміру вирішити спір саме в порядку арбітражу шляхом подання звернення в арбітраж (позовної заяви) такий спір виключається з юрисдикції державних судів та розглядається арбітражем.
 Висновки. Беручи до уваги договірні передумови передачі спору на вирішення міжнародних комерційних арбітражів, арбітрабільність спорів дійсно є критерієм, що окреслює сферу правомочностей сторін спору щодо вибору й передачі на вирішення арбітражу певних, визначених категорій спорів (визначає межі договірної свободи сторін), а з іншого боку – на етапі виникнення спору дозволяє складу арбітражу виявити належність конкретного спору до тих, які можуть бути вирішені арбітражем, відмежовуючи таким чином сферу підвідомчості спорів державним судам.
 Положення проаналізованих норм свідчать, що на рівні українського законодавства створено відповідний механізм реалізації положень Нью-Йоркської конвенції 1958 р. й учасники, які уклали угоду про передачу спору на вирішення міжнародного комерційного арбітражу, дійсно мають право скористатися саме таким способом альтернативного вирішення спору з його одночасним вилученням з юрисдикції державних судів, що забезпечується положеннями процесуального кодексу про залишення позову без розгляду та закриття провадження у справі.

FEATURES OF ESTABLISHING ARBITRABILITY IN THE COUNTREES OF THE ROMANO-GERMANIC LEGAL SYSTEM

The article is devoted to the analysis of the peculiarities of securing and regulating arbitrability in the countries of the Romano-Germanic legal system, as France, Sweden, Germany and Finland. It is established that arbitration is divided into objective and subjective, each of which has its own specific features in each country's legislation. It is emphasized that French arbitration law is one of the most pro-arbitration in Europe, in particular on matters of arbitrability and public order. Concerning the features of the Swedish regulation of arbitrability, it is stated that arbitrability is determined both by the law applicable to the arbitration agreement and by Swedish law. Unless the dispute is arbitral under one of the above jurisdictions, the arbitral tribunal may not have jurisdiction to hear that particular dispute. It is established that, since the problem of impossibility to enforce an arbitration agreement on a particular issue is, in fact, a problem of the validity of the contract, then the proper moment of verification of arbitrability is the moment of the conclusion of the parties to the arbitration agreement. If the dispute arose at the same time as the parties concluded the agreement and the parties could then settle it amicably, then such dispute shall be arbitrary. The position of the Finnish legislation on limiting the right of a party to an arbitration hearing to request the annulment / refusal of enforcement of an arbitral award on grounds not stated by the arbitral tribunal is analyzed. It has been established that, in the practice of the Finnish courts, there are no examples of restrictions on the right of parties who conclude commercial contracts involving budget (state) financing, to submit disputes from such contracts to the arbitral tribunal. It has been established that any property claim may be the subject of arbitration in Germany. German law reflects the concept of arbitrability, which provides for two conditions for admissibility of the dispute through arbitration: if the subject matter of the dispute does not fall within the exclusive jurisdiction of the German state court (objective arbitrability), and when the parties to the dispute entered into a valid arbitration subjective arbitrage).

TÜRK HUKUKUNDA TAHKİME ELVERİŞLİLİK KAVRAMI VE TAŞINMAZ AYNINA İLİŞKİN UYUŞMAZLIKLARIN TAHKİMDE GÖRÜLMESİ

İnsanlık tarihinin bilinen en eski yargılama yollarından birisi tahkimdir. Eskiden beri olan bu yargılama sistemi modern hukukta da önemini korumaktadır. Tahkim taraflar arasında doğmuş veya doğabilecek uyuşmazlıkların devlet yargısı dışında hakem kurulu adında taraflarca seçilen özel kişi veya kişilerce çözülmesidir. Tahkim sonucunda alınan karar kesin hükümdür. Bu sebeple tahkime gidilebilmesi için geçerli bir tahkim sözleşmesi gereklidir. Geçerli bir tahkim sözleşmesi olabilmesi için belli başlı unsurların sözleşmede bulunması gerekmektedir. Tahkim sözleşmesinin geçerliliği için gerekli unsurlardan birisi de tahkime elverişli bir konunun bulunmasıdır. Her hukuk sistemi tahkime elverişlilik kavramını farklı değerlendirmiştir. Türk hukuku ise taraf iradesine dayanmayan ve taşınmaz aynına ilişkin uyuşmazlıkların tahkime elverişli olmadığını kabul etmiştir. Bu çalışmamızda öncelikle tahkimin ne anlama geldiği ve tahkim sözleşmesinin unsurları ele alınmaktadır. Ardından Türk Hukukundaki tahkime elverişlilik kavramı açıklanmaktadır. Bu açıklamalardan sonra gelişmiş ülkelerdeki tahkime elverişlilik kavramı incelenmektedir. Son olarak, taşınmaz aynına ilişkin uyuşmazlıkların tahkimde görülmesinin Türk Hukuku açısından sonuçları ve taşınmaz aynına ilişkin uyuşmazlıkların tahkimde görülebilmesi gerektiğinin nedenleri üzerinde durulmaktadır.

Potential Appeal Mechanism by Consent: Arbitration

Arbitration is a process of resolving disputes out of the court. It goes through many other synonyms such as mediation, conciliation, adjudication etc. One thing common in all is that we appoint an arbitrator who looks into all the matters in dispute and lays his decision in accordance to the legal statutes related to arbitration formed by the legislature. However the party in disputes gives an early consent to go for the arbitration rather than an appeal for many reasons. Howsoever there are people who consider that proper justice are not granted to them until and unless they go for appeal, but there are numerous advantages because of which parties now a day’s prefer arbitration over the court proceedings. It is a less expensive, less time consuming process. Many states have made arbitration process compulsory. In many jurisdictions areas arbitration is somewhat a similar process to trial. This article will basically focus on the concept of Arbitration, its types and importance in today’s world. One more important aspect which needs to be taken into account is the concept of “logic”. Generally, we deal with the statutes or the codified law, but in this article we will try and see the genesis of applying logics in solving disputes, which is certainly more unpredictable approach towards any matter in dispute. This article, primarily focuses that even after having set of codified laws, how can one solve their matter in comparative less time period by using same set of laws and applying a little technical and logical reasoning towards it. These potential appeal mechanisms are friendly, and avoid signs of erosion. Along with the application of law, its enforcement (the arbitral awards given) also and always taken into consideration and are acted accordingly.

Tahkim Alanında Toplumsal Cinsiyetin Yansımaları (Hakem Seçiminde Cinsiyet Çeşitliliği)

The concept of arbitration generally refers to resolution of disputes outside the state’s judiciary through an arbitrator or an arbitral tribunal for subjects that are arbitrable. If the works regarding the history of arbitration are examined, it will be seen that this concept was existent for a long period of time. However; in today’s modern societies, arbitration as a dispute resolution method is based on rules that are accepted by each country through national and international legislation. Arbitration is being used more often by modern societies as a dispute resolution method, especially with the fast changing and developing commercial relationships among companies. Together with this, around the globe it is seen that there are less women working in the field of arbitration compared to men and there are several factors causing this. The aim of this article is to determine the problems that are causing gender inequality in the field of arbitration. Women that show effort in order to be appointed as arbitrators in arbitral tribunals in an international scope require to work and gain more experience compared to men in order to overcome the obstacles that are either visible or invisible. When we examine the situation in Turkey, since there is not sufficient statistical date on number of woman taking part in arbitral tribunals in Turkey, it is not possible to give a ratio in this matter. Still, arbitration is open for development and support in terms of enhancing the number of woman arbitrators in our country. Necessary work should be done in order to develop and generalize this field.

THE INTRODUCTION OF ARBITRATION WITHIN THE BRAZILIAN LEGAL CONTEXT

The present article analyzes the introduction of arbitration as an alternative method of conflict resolution within the Brazilian legal context. In this sense, after a preliminary remark on the origins and concept of arbitration, this text focuses on the construction of the institute of arbitration within Brazilian legal framework. Thus, the aspects regarding the enactment of Law No. 9.307/96 are examined, especially concerning the requisites for the establishment of an effective arbitral convention. Finally, the structure of the law in regard to pre-arbitration facts, such as parties’ autonomy and the choice of applicable laws, and the arbitration per se as to the execution of the clause and the aspects concerning the delivery of the award are studied. As a result, the importance of the introduction of such Law it is noticed, as it deeply changed Brazil’s legal framework regarding the arbitral convention, making a more palpable and viable method of solving disputes nowadays.

THE INTRODUCTION OF ARBITRATION WITHIN THE BRAZILIAN LEGAL CONTEXT

The present article analyzes the introduction of arbitration as an alternative method of conflict resolution within the Brazilian legal context. In this sense, after a preliminary remark on the origins and concept of arbitration, this text focuses on the construction of the institute of arbitration within Brazilian legal framework. Thus, the aspects regarding the enactment of Law No. 9.307/96 are examined, especially concerning the requisites for the establishment of an effective arbitral convention. Finally, the structure of the law in regard to pre-arbitration facts, such as parties’ autonomy and the choice of applicable laws, and the arbitration per se as to the execution of the clause and the aspects concerning the delivery of the award are studied. As a result, the importance of the introduction of such Law it is noticed, as it deeply changed Brazil’s legal framework regarding the arbitral convention, making a more palpable and viable method of solving disputes nowadays.

THE INTRODUCTION OF ARBITRATION WITHIN THE BRAZILIAN LEGAL CONTEXT

The present article analyzes the introduction of arbitration as an alternative method of conflict resolution within the Brazilian legal context. In this sense, after a preliminary remark on the origins and concept of arbitration, this text focuses on the construction of the institute of arbitration within Brazilian legal framework. Thus, the aspects regarding the enactment of Law No. 9.307/96 are examined, especially concerning the requisites for the establishment of an effective arbitral convention. Finally, the structure of the law in regard to pre-arbitration facts, such as parties’ autonomy and the choice of applicable laws, and the arbitration per se as to the execution of the clause and the aspects concerning the delivery of the award are studied. As a result, the importance of the introduction of such Law it is noticed, as it deeply changed Brazil’s legal framework regarding the arbitral convention, making a more palpable and viable method of solving disputes nowadays.