Concept Of Arbitration Research Articles

Arbitration Agreement: The Issue of Arbitrability in Nigeria Arbitration Practice

Arbitration agreement is the bedrock of every arbitral proceedings and it is the corner stone of the jurisdiction vested on the arbitrators to arbitrate on any matter referred to them. The agreement could take various forms and character (oral or written) depending on the governing law. It is not all issues and subject matters that are arbitrable. Different national legislation and public policy have limited the scope of arbitration with respect to the issue of arbitrability. Not all matters are capable of being referred to arbitration. Certain matters are reserved for the court alone and if an arbitral tribunal purports to deal with them the resulting award will be unenforceable. We have arbitrability based on agreement and arbitrability based on law and public policy. In this work, efforts shall be made to address all issues with respect to arbitration agreement under the Act and the concept of arbitrability.

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.

A way to increase K-SURE’s export insurance recoveries through arbitration by subrogation

Purpose The purpose of this paper is to utilize the concept of arbitration by subrogation as a means to increase recoveries of indemnities paid out to exporters or any financial institutions by K-SURE, an export credit agency of Korea, against possible non-payment or breach of obligations from the buyer or the buyer’s country. It looks into the possibility of K-SURE and KCAB reactivating its 2004 MOU to give more jurisdictional protection to K-SURE’s indemnities recovery transactions. Design/methodology/approach This paper first introduces a brief elucidation about export insurance provided by K-SURE and the necessity of arbitration in the export insurance, and a summary of a subrogation arbitration case referred to the KCAB by K-SURE in 2005. Cognizant of the 2004 MOU between K-SURE and KCAB, as well as the foreign and domestic developments in arbitration, the paper then analyzes legal principles of subrogation by insurer, as well as domestic and overseas precedents on the matters of assignment of claim and arbitration by subrogation. Findings While it appears that there is still no universally recognized authority nor established court precedents applying arbitration by subrogation, the authors discovered that similar to Korea, most of leading courts in the world have consistently held that the assignee can request and be requested for arbitration pursuant to the arbitration agreement contained in the assigned contract. The paper concludes that the K-SURE now can be admitted as a party having proper standing in the arbitration proceedings so long as the specific claim right under the contract which includes the arbitration agreement is assigned to the K-SURE. Originality/value This paper suggests a possible plan to increase recoveries in export insurance. The outcome of the research is expected to enhance the arbitration system on the back of increasing numbers of arbitration related to export insurance, to improve the balance sheet of K-SURE and ultimately, to help the Korean economy by collecting export insurance recoveries which will lead to saving Korean people’s tax.

Reform of the Legal Framework of ICA Activity in Russia: Prerequisites, Conditions, Perspectives

The article provides an overview of the updated national legislative approach to the legal regulationof activities of institutional international commercial arbitration institutions in the country based on theprovisions which shall take effect from September 1, 2016 the new Federal Law of 29.12.2015 no382-FZ On Arbitration (Tribunal) in the Russian Federation. The author identified the negative factorsdetermining the necessity to develop and approve this law and its majour novels. Among them, theauthor specifies new concepts of arbitration, the issues of drafting arbitration agreements, updatedlist of principles of arbitration tribunal. A special attention is drawn to the norms concerning the establishmentof the current arbitration institutions. The paper compares this legislative approach withthe liberal one which provided a wider freedom under the Federal Law of 24.07.2002 no 102-FZ OnArbitration Courts in the Russian Federation. Besides, the paper analyzes the provisions of the newFederal Law no 409-FZ, which is to come into force from September 01, 2016 and amend the Law onthe ICA, the Arbitrazh Procedure Code, Civil Procedural Code of the Russian Federation and otherregulatory legal acts. The conclusion is made that the strict requirements to the formation of permanentarbitration institutions and the establishment of significant restrictions on the organizations in whicharbitral tribunals can be established, will enhance the role of the state in the arbitration proceedings,on the one hand, and avoiding the so-called pocket arbitration courts - on the other hand. The paperrevealed the limitations set by the legislator for the arbitral tribunal formed by the parties to settle adispute (ad hoc) in comparison with the arbitration administered by a permanent arbitral institution.The advantages of the Arbitration Act in the context of the provisions of the opportunities provided byits participants in the arbitral proceedings.

Using Arbitration for Resolving Foreign Investment Disputes: A Comparative Study of Laws on Arbitration in Ghana and China

<p>International Investment in recent times is seen as one of the fastest-developing areas of international law. In the past decades, there has been a dramatic increase in the number of bilateral investment treaties and other agreements with investment related provisions that grant foreign investors important substantive and procedural rights, including, most importantly, the right to sue individuals, organizations and even the state hosting their investment for violations of customary international law and treaty obligations. Dispute becomes an inevitable phenomenon as individuals, organizations and countries continue to engage in foreign investment and as such there is the need for dispute solving mechanism to resolve such disputes as and when they arises. Even though there are several dispute solving mechanisms, arbitration seems to be a well-established and widely used mechanism to end dispute probably due to the efficiency and flexibility nature of it. The laws governing arbitration differ from one country to the other and it is for this reason that investors need to be abreast with the different arbitration laws so as to enable them make inform decisions as to whether to resort to arbitration or not. This paper analyses the arbitration laws of The Republic of Ghana and Peoples Republic of China in a comparative manner by drawing on the similarities and difference with respect to arbitration laws and procedure in these two countries. The paper is divided into three parts. The first part of this paper gives a brief background as well as the characteristics of the concept of arbitration. The second part looks as the similarities and difference of arbitration between the selected countries, and the final part looks at the arbitration phase and post arbitration phase of the two countries.</p>

Enforcing Arbitrator’s Obligations: Rethinking International Commercial Arbitrators’ Liability

Liability of arbitrators touches the heart of the concept of arbitration as it affects the legal relationship between the arbitrators and the parties and concerns some essential issues on the nature of the arbitrator's mandate. This article intends to propose an alternative conceptual approach to the immunity-based theories, endorsing the suggestion that the arbitrator shall be liable as any normal intellectual service provider for breach of her obligations. Regarding the regime of liability, a systematization is proposed whereby strict liability, fault-based liability and tortious liability cohabitate. This relationship is argued being contractual. The existence of an objective contractual exchange underlies contractual liability for breach. As a consequence, the thesis proposed in this article is that the arbitrator shall be liable for breaches of the obligations contractually incurred. These contractual obligations can be divided into two main clusters, namely, the obligation to decide the dispute submitted and the obligation to provide a fair and equal adjudication. Thus, a dual regime of contractual liability for arbitrators is proposed. A separate set of obligations is represented by the pre-contractual duties of disclosure, which are tort-based. The plain existence of a contractual relationship between the arbitrator and the parties automatically sets aside all those theories claiming that because of the status or for some policy argument, the arbitrator must be immune from liability. As a consequence, any immunity or qualified immunity-based theory is rebutted in favor of a full liability-based conceptual scheme.

Trends in Arbitrability

In this article Beata Kozubovska looks at the relationship between arbitrability and public policy in the international arbitration system. In rеcеnt yеаrs а trеnd tоwаrd еxpаnsiоn оf аrbitrаbility hаs bееn nоticеd. Each state may decide, in accordance with its own economic and social policy, which matters may be settled by arbitration and which may not. Arbitrаtiоn friеndly cоuntriеs inеvitаbly аttrаct mоrе аrbitrаtiоn usеrs аnd this rеsults in fоrum shоpping. Public policy doctrine is not entirely relevant to the concept of arbitrability. Precisely for this reason a different approach has been suggested. The restrictions of arbitrability are more relevant and precisely described by the reference to the origin of arbitration; arbitration by being of the contractual nature cannot affect people that are outside the scope of the arbitration agreement. Rеstrictiоn оf аrbitrаbility rеfеrs tо thе cоntrаctuаl nаturе оf аrbitrаtiоn prоcеss which lаcks the tооls needed tо rеаch thе rеlеvаnt pаrtiеs bеyоnd thе аrbitrаtiоn аgrееmеnt аnd nоt to public pоlicy issuеs. The paper also provides a helpful analysis of arbitration, especially for those who are less familiar with the topic. Beata Kozubovska is an associate of the Dispute Resolution practice group in Motieka & Audzevicius Law Firm in Vilnius office. Beata has completed her PhD in Law at Vilnius University. She completed and was awarded LL.M. in Commercial Law from University College London (UCL), a LL.M. degree from Vilnius University and has participated in Exchange Programme where she studied EU and International Law in Vrije Universiteit in Brussels, Belgium. Beata has been awarded a Postgraduate Diploma in EU Competition Law from King's College, London University, a Practice Diploma in International Joint Ventures from College of Law of England and Wales, also was awarded the Certificate in International Commercial and Investment Arbitration by the International Academy for Arbitration Law in Paris.

Arbitragem e “Parte Fraca”: a Questão das Relações de Consumo

ABSTRACT: The concept of arbitrability refers to the ability of certain disputes to be submitted to arbitration. Several are the divergences regarding the themes that can use in Brazilian law arbitration to solve the conflicts originating from contractual relations. Among these themes, topping of importance in the national scenario is the question concerning the possibility of consumer disputes to be submitted to arbitration. In view of the dynamism of consumer relations at present, it is necessary to search for alternative and effective mechanisms of dispute resolution, among which stands out the arbitration. However, the use of this mechanism for the resolution of consumer disputes in Brazil is denied due to the barrier imposed by article 51, VII, of Brazilian Consumer Code that considers abusive the clause providing for the compulsory use of arbitration, despite of the fact that article 4º, § 2º, of Brazilian Arbitration Law allows the use of this mechanism in adhesion agreements. This article, based on foreign and domestic doctrine and jurisprudence on the theme, quest demonstrate the feasibility of the use of arbitration in solving consumer disputes.

Arbitrability of Consumer Financial Disputes between Banks and Their Private Clients in Selected Jurisdictions

Disputes between banks and individual clients seem to require special attention in the years to come and it is crucial to set forth some of the issues and recent developments where arbitra-tion may be possible or not. In this regard the concept of arbitrability is decisive and sets limitations on matters that might be settled by arbitration. Public policy restrictions are defined by every State or any other legal order in accordance with their own economic and social policy. Thus, the concept of arbitrability is relative and not absolute since it varies from one jurisdiction to another. Hence, this analyse will focus on mandatory rules and restrictions applied by three distinctive systems: the European Union, Switzerland and the United States as to draw a line between those consumer disputes in financial matters that may be resolved by arbitration and those that belong exclusively to the domain of the courts.

Arbitration in Kuwait: Study of Current Practices and Suggestions for Improvements

AbstractIn the construction industry, disputes are inevitable. Contract disputes result from conflicting contract documents, changes to the original scope of work, or breaches of contract. Arbitration is the preferred alternative dispute resolution method in international construction contracts because it saves time and money and prevents litigation under foreign laws. Western contractors and investors fear entering into contracts with Middle Eastern owners and government entities, especially when a contract stipulates the application of local national laws and jurisdiction. Furthermore, questions regarding foreign contractors’ rights and the validity of certain contractual provisions for dispute resolution in local courts and their ability to use arbitration to resolve disputes need to be addressed. This paper examines the concept of arbitration as an alternative dispute resolution method and its application in the Kuwaiti construction industry. The paper focuses on Kuwaiti arbitration law, examines curr...

Las reglas de arbitraje de la CNUDMI frente al arbitraje en el sistema ecuatoriano

Se hace un estudio de derecho comparado entre las reglas de arbitraje de la Comisión de las Naciones Unidas para el Derecho Mercantil Internacional (CNUDMI), establecidas específicamente en el Reglamento de Arbitraje, frente al arbitraje en el sistema ecuatoriano. Se inicia definiendo el concepto de arbitraje, diferenciando el arbitraje internacional del interno. Luego, se hace una referencia histórica de la CNUDMI y del Reglamento de Arbitraje, para continuar con un estudio sobre los antecedentes y el articulado de la Ley ecuatoriana. Finalmente, se hace el cotejo de ambos sistemas, con las consiguientes conclusiones.

Alternate Dispute Resolution and the Common Man

Alternate Dispute Resolution popularly called by its generic acronym ADR, is an idea that engulfs the concepts of arbitration, mediation, conciliation and various other processes which fall outside the judicial preview. Alternate Dispute Resolution directs towards a swifter and less expensive route to justice, thereby also reducing the backlog of astronomical number of cases in the court. This process has emerged as an essential component of conflict management and judicial reform. A ray of hope and betterment binds, the process of Alternate Dispute Resolution to the common man, as people will not have to exhaust their resources for attainment of Justice.

Arbitration in Construction Industry in Malaysia

Disputes in construction industry are normal and sometimes cannot be avoided. Disputes arise from the interpretation and/or application of any part of building or engineering contract documents that are ambiguous, unplanned and conflicting at any time during the execution of the contract. There are many methods/techniques have been introduced in order to resolve the disputes and arbitration is one of the popular recommended method. This study examines the concept of arbitration and its acceptance by the Malaysia construction industry. Questionnaires have been sent to the selected contractors to collect information, data and views regarding to arbitration process, procedures and award. The survey reveals that arbitration still fails to impress Malaysian contractors. Lengthy time and high expenses are the common reasons given. Improvement must be made in order to improve the efficiency and the effectiveness of arbitration. New techniques of dispute resolution can be introduced by taking into account the problems existing in the recent techniques available and come out with better techniques that can guaranty satisfaction to the users.

The Foundations of Arbitrability in International Commercial Arbitration

Arbitrability is concerned with whether a particular type of dispute is amenable to settlement by arbitration, or if instead jurisdiction lies exclusively with the domestic courts or state organs. These determinations are usually made by reference to domestic statute law.1 The parties to a dispute, when considering whether its subject matter is arbitrable, must ensure the said dispute is arbitrable not only in accordance with the law of the lex arbitri, but that it also conforms to the laws and public policy of the governing law of the contract and of those states where enforcement of the award will be sought. It should be said that some confusion exists with regard to the precise terminology associated with the concept of arbitrability. In Europe the term refers, as explained above, to the permission granted by state laws for a dispute to be settled by arbitration, rather than compulsory judicial settlement. In the United States, it has taken on an additional overtone. There, the term has been consistently employed to determine whether an arbitral tribunal has sufficient jurisdiction to hear a dispute as a matter of construction of the arbitral clause,2 as well as whether the arbitrators may validly

The Australian International Arbitration Act, the Fiction of Severability and Claims for Restitution

THE CONCEPT of arbitration as a method of dispute resolution is not a recent phenomenon. In 350 BC Plato observed: > In the first place there shall be elected judges in the courts who shall be chosen by the plaintiff and defendant in common; they shall be arbiters rather than judges.1 The agreement of the parties, while elementary, is also fundamental: > An arbitrator on a reference by consent out of court derives his authority from the terms of the private contract made between the parties.2 The arbitrator will determine the issues put before him or her by the parties' private contract, and will make a decision after hearing the parties to that contract. Generally, the arbitrator will be required to act in a judicial manner.3 Toward the close of the 1950s, the United Nations recognised that arbitration was more malleable to the complexities of international trade than local, ordinary, court proceedings. On 7 June 1959 the Economic and Social Committee of the United Nations concluded and ratified a convention for the legal recognition and enforcement of arbitration agreements and awards (‘the New York Convention’). The New York Convention gave effect to the recognition and enforcement of arbitration agreements and awards. However, despite international recognition of the usefulness of arbitration to resolve disputes,4 Australia has traditionally been reluctant to embrace arbitration.5 For example, it was not until 1974 that Australia ratified the New York Convention when the Commonwealth Parliament exercised its constitutional powers to enact the Arbitration (Foreign Awards and Agreements) Act.6 Part I of that Act dealt with preliminary matters. Part II gives effect to the New York Convention. In 1989 Part III was introduced into the Act giving effect to the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Arbitration.7 …

The Two Fundamental Concepts of Arbitration and Their Relation to Rules of Law

The Two Fundamental Concepts of Arbitration and Their Relation to Rules of Law