Enforcement Of Arbitration Agreements Research Articles

Arbitrability of Data Protection Disputes: Personal Data, Personalized Justice?

Abstract This article explores the interplay between international arbitration and data subject compensation claims under the General Data Protection Regulation (GDPR). The analysis focuses on the validity and enforcement of arbitration agreements and the resulting awards. The article argues that despite potential skepticism, arbitration can offer significant benefits to data subjects, and that compensation claims under the GDPR should be considered arbitrable under the New York Convention and CJEU case law. The article further argues that EU courts have a duty to refer disputes to arbitration, and that the mandatory provisions of EU law have limited means of interfering with this duty. Furthermore, it establishes that the misapplication of GDPR provisions does not automatically justify the denial of arbitral award recognition. The article argues that this is a natural extension of trust traditionally shown to arbitrators, and that such trust should not be easily cast aside.

Enforceability of Arbitration Agreement under Sanctions

Enforceability of Arbitration Agreement under Sanctions

Contextualizing the Doctrine of Privity of Contract in Relation to International Investment Arbitration

International investment arbitration, though within the sphere of public international law, is organically linked with conflict of laws and private contract law. International investment arbitration will, therefore, always, follow the same trajectory as the contract law of the country whose laws parties have chosen to govern their contract or relationship. Scholarly conversation now emerges with regard to third-party rights in municipal contract law and the dwindling influence of the doctrine of privity in both municipal and international laws. This work aims at examining the effect of the evolving legal order relating to privity of contract on international investment arbitration. The contract law of the country, which the parties have chosen as the lex loci , undoubtedly, impacts the conduct of the arbitration between the parties; especially, as it relates to third-party rights to join in arbitration, enforcement of arbitration agreements, and enforcement of arbitral awards. Qualitative research methodology is adopted in the work and this enabled the interrogation of previous literature on the dwindling status of the doctrine of privity and emerging third-party rights in municipal contract law. The selected research methodology particularly enabled the researchers to examine the effect which emerging third-party rights may have on international investment arbitration. The work finds: (i) that international investment arbitration and private contract law are, indeed, organically connected and that this connection is causal; (ii) that international investment arbitration will, continually, follow the same trajectory as the domestic contract law of the country whose laws parties have chosen to govern their contract or relationship; and (iii) that the national contract laws of some countries now contain third-party rights, which provide leeway for participation by third parties in arbitral proceedings in certain instances. The work recommends that the inroad of the privity of contract doctrine in international investment arbitration is salutary and that maximizing the gains of this massive inroad necessitates increased legislative intervention, which will empower third parties who are able to show prima facie that the outcome of the arbitral proceedings will affect them one way or the other, to join in such arbitral proceedings in order to protect their rights or interests. This is especially so in international investment arbitration ensuing from the petroleum and mining sectors, where investment activities fundamentally disrupt the lives of locals and violate their internationally recognised human rights. Keywords : Arbitration, Contract, International law, Privity, Third-Party Rights DOI: 10.7176/JLPG/127-04 Publication date: December 31 st 2022

International Arbitration on Investment Disputes in Natural Wealth and Resources Sector in Tanzania

This article analyses rules relating to international arbitration in natural wealth and resources sector under the newly enacted Arbitration Act of 2020 of Tanzania. The Act is enacted to facilitate amicable settlement of disputes outside the court system as well as enforceability of arbitration agreements. In a broader framework, the Act responds to the challenges faced by Tanzania in managing and addressing many issues emerging in arbitration cases especially investor-state arbitration. Such reforms are not uniquely Tanzanian but form part of the larger emerging reforms in investment regime in key strategic economic sectors in most of the developing world. This is reflected within the ongoing UN Commission on International Trade Law (UNCITRAL) working group on reforming the investor-state dispute settlement system. Under the new law, all disputes involving natural resources can only be arbitrated in Tanzania, as a seat of arbitration, whether under the auspices of the bodies established in Tanzania or otherwise. Likewise, all disputes arising from extraction, exploitation or acquisition and use of natural wealth and resources can only be adjudicated in accordance with the laws of Tanzania. To this end, the Act complements similar relevant provisions under the Natural Wealth and Resources (Permanent Sovereignty) Act and the Natural Wealth and the Resources Contracts (Review and ReNegotiation of Unconscionable Terms) Act of 2017. The Arbitration Act 2020 is aimed at creating a viable regime which will encourage alternative dispute resolution and establish a conducive framework for the enforcement of arbitral award. This paper analyses the Arbitration Act 2020 whether it complies with the best international practices in arbitration regime. It also argues that limiting seat of arbitration and the governing law of international arbitrations on disputes in natural wealth and resources sector are significant reforms to the existing investments landscape in the sector in Tanzania. They form a part of the larger picture of emerging reforms in investment regime in key strategic economic sectors in most of the developing world. As a capital importing state, Tanzania, like other developing nations, seek to avoid the perceived frustrations of international arbitrations to obtain a fair deal on investment agreements on her natural resources through an effective arbitration regime and foreign investments. Indeed, these reforms are likely going to bring back many Tanzanian cases from abroad to Tanzania as a safe seat of arbitration. Keywords: International arbitration, seat of arbitration, governing laws, natural wealth and resources sector, Bilateral Investment Treaties (BITs).

Nationalist International Commercial Arbitration?: The Supreme Court and State Law Equitable Estoppel in GE v/ Outokumpu

A unanimous Supreme Court decided on June 1, 2020 in an opinion written by Justice Clarence Thomas the question of whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958 (hereinafter the “New York Convention”) conflicts with domestic equitable estoppel doctrines that permit the enforcement of arbitration agreements by nonsignatories concluding that it does not. As the 11th Circuit Court of Appeals concluded that the New York Convention prohibits enforcement by nonsignatories, the Court reversed the 11th Circuit Court of Appeals and remanded the case for further proceedings. In that regard the questions of whether GE could enforce the arbitration clauses under principles of equitable estoppel or which body of law governs that determination were left to the 11th Circuit to decide in the remand. In a concurrence Justice Sonia Sotomayor - while agreeing with the court that the New York Convention does not categorically prohibit the application of domestic doctrines, such as equitable estoppel, that may permit nonsignatories to enforce arbitration agreements - noted that the application of such domestic doctrines is subject to an important limitation: any applicable domestic doctrines must be rooted in the principle of consent to arbitrate. From the point of view of separability doctrine, contract interpretation, treaty law it possibly brings into the arena of international commercial arbitration a particularly nationalist form of American approach to international trade. If that is the case, the New York Convention may be so twisted by domestic FAA Chapter 1 jurisprudence, that its efficacy for international contracts with American parties may be compromised. So we may have to again open the door to another international commercial arbitration convention being prepared.

House Judiciary Inquiry into Competition in Digital Markets: Statement of Herbert Hovenkamp

House Judiciary Inquiry into Competition in Digital Markets: Statement of Herbert Hovenkamp

The Dampening Effect of ‘Foreign’ Mandatory Laws

Party autonomy – a foundational facet of international arbitration – is often at loggerheads with public policy elements. A recurrent debate in international arbitration has been the extent of limits imposed by public policy on party autonomy. One aspect of this debate is when parties expressly opt for a law governing the merits of the dispute, can an arbitral tribunal derogate from such law and apply a mandatory rule which it finds to be relevant to the dispute? This issue has repercussions on the enforceability of arbitration agreements as well as arbitral awards where mandatory rules are involved. In this article, the author argues that arbitrators are bound to apply mandatory laws notwithstanding the fact that such a measure constitutes a departure from the lex contractus, since parties inherently lack the capacity to contract out of mandatory rules. To the extent that mandatory rules reflect public policy they now cast a limit to parties’ lex contractus.

Non-Disclosure Agreements, Liquidated Damages and Arbitration in Context: Contracts Drawn for Good or Evil

Why are NonDisclosure Agreements not simply a matter of providing for the liberty interests of the parties to enter into contracts that they choose to make with each other? As a start, we want to offer an analysis of a cornerstone of such contracts, the prescription of agreed damages commonly referred to as liquidated damages. We will use the law and economics lens to sharpen our understanding of the economic tradeoffs involved in NDAs. We will then turn to a discussion about injunctions and their enforceability in equity, and then make some observations on the enforceability of arbitration agreements that oust the courts’ jurisdiction. In the process, we hope to draw a line between those cases where NDA’s should continue to viable, and those where at least some of their provisions should be found unenforceable.

The New York Convention: A Self-Executing Treaty

The thesis of this Article is that uncertainty regarding the Convention’s status as a self-executing treaty of the United States is unwarranted and unfortunate. Instead, both the Convention’s provisions for recognition and enforcement of arbitration agreements (in Article II) and of arbitral awards (in Articles III, IV, V, and VI) should be regarded as self-executing and directly applicable in U.S. (and other national) courts. As discussed in detail below, this is because Article II establishes mandatory, complete, and comprehensive substantive rules, directed specifically to national courts, for the recognition and enforcement of international arbitration agreements. Likewise, the history and purposes of the Convention, the language and legislative history of Chapter 2 of the Federal Arbitration Act (the “FAA” or “Act”), and the practices of other Contracting States support the conclusion that Article II is directly applicable in American courts.

Indian Premier League and XIX Commonwealth Games take arbitrability of fraud in India by storm

Allegations of fraud by a party have proven to be a troublesome question for enforcement of arbitration agreements in India. No statutory provision of the Indian Arbitration and Conciliation Act, 1996 expressly prohibits arbitrability of fraud claims in India. However, judicial precedents had steered this issue in a direction where even a hint of any fraudulent action by one of the parties would make the disputes non-arbitrable. This article attempts to provide an in-depth analysis of arbitrability of fraud claims in India. It deals with both kinds of fraud—fraud while entering into the arbitration agreement, and fraud while performing obligations under the agreement. In pursuance of this endeavour, the authors highlight some key provisions of the Arbitration and Conciliation Act, 1996. Thereafter, the authors critically analyse the effect of the recent judgments of the Supreme Court of India in World Sports Group (Mauritius) Ltd v MSM Satellite (Singapore) Private Limited and Swiss Timing Limited v Organizing Committee, Commonwealth Games on arbitrability of disputes pertaining to fraud in India. The authors conclude by enumerating additional reasons for permitting arbitrability of disputes pertaining to fraud in India.

The Politics of Arbitration Law and Centrist Proposals for Reform

Arbitration law in the United States is far more controversial when applied to individuals than to businesses. While enforcement of arbitration agreements between businesses sometimes raises legal issues that divide courts, those issues tend to interest only scholars, lawyers, and other specialists in the field of arbitration. In contrast, enforcement of arbitration agreements between a business and an individual (such as a consumer or employee) raises legal issues that interest many members of Congress and various interest groups — all of whom have taken positions on significant proposals for law reform. The Consumer Financial Protection Bureau has extensively researched and reported on consumer arbitration agreements and is expected to issue a rule regulating, or even prohibiting, such agreements. This Article both explains how issues surrounding consumer and other adhesive arbitration agreements became divisive along predictable political lines and introduces a framework to understand and compare various positions on them. This new framework arrays on a continuum five positions on the level of consent the law should require before enforcing an arbitration agreement against an individual. Progressives generally would require higher levels of consent than arbitration law currently requires, while conservatives generally defend current arbitration law’s low standards of consent. This Article proposes an intermediate (or centrist) position. It joins progressives in rejecting conservative-supported anomalies that enforce adhesive arbitration agreements more broadly than other adhesion contracts on the three important topics: contract-law defenses, correcting legally-erroneous decisions, and class actions. Once these anomalies are fixed though, adhesive arbitration agreements should — contrary to progressives — be as generally enforceable as other adhesion contracts. In other words, this Article joins conservatives in defending general enforcement of adhesive arbitration agreements under contract law’s standards of consent. The Article briefly concludes with the language of a rule the CFPB could adopt to enact into law the reforms advocated in this Article.

Experts Predict: What's Ahead for PA/LTC in 2015?

Experts Predict: What's Ahead for PA/LTC in 2015?

Enforceability of Arbitration Agreements Contained in Emails

In Lets Engineering & Technology Services Pvt. Ltd. v. Manoj Das (judgment date 04.01.2013), the Delhi High Court had to review the scope and ambit of Section 7(4) (b) of the Arbitration and Conciliation Act 1996 and conclude whether an arbitration clause came into force through an exchange of e-mails between the parties. In the absence of a formal agreement executed between the parties, the court relied on the emails exchanged between the parties to understand the intention of the parties. The Court held that in this case, there existed a valid arbitration agreement between the parties as there has been a record of arbitration agreement through exchange of emails and also that the parties had consented to the agreement by conduct.

Consumer protection law in the People’s Republic of China

The Law of the People’s Republic of China on Protecting Consumers’ Rights and Interests (CPL), adopted on 31 October 1993, deals at length with the civil liability of businesspersons. However, consumer protection is understood in China as essentially the responsibility of the state, to be implemented by public authorities, and even consumer associations which are governed nominally by the CPL are subject to administrative oversight. These and other peculiarities of China’s CPL resulting from unique aspects of China’s state organization and political system will be examined in this article. China’s CPL aspires to comprehensively regulate consumer protection. Nevertheless, the liability of businesspersons is subject to primary laws and numerous special laws for certain products. This article is intended to provide guidance for those applying the law. The article thus focuses first on the definition of the term‚ ‘consumer’ as well as rights and obligations within the area of applicability of the CPL. Thereafter it discusses in particular the civil liability of businesspersons, the state‘s consumer protection mandate, the role of consumer associations, dispute resolution options as well as special procedural features of the Chinese CPL. Thereby the article concentrates on the question, if the current legal framework of the CPL and the consumer protection standards of other laws provide an adequate protection for consumers in China. This article also deals with the important question of implementing the legal framework into practise and explains the realization of consumer rights through administrative protection by consumer associations as well as individual consumers. Finally, the author also looks ahead to upcoming reforms by the National People’s Government in China. Particularly the introduction of public interest litigation and the regulation on the enforceability of arbitration agreements will be presented, as well as their potential impact on consumers, businesspersons and consumer associations.

Immediate Appealability of a Court Order Against Arbitration: It Should Be Allowed and Even Made Compulsory

If we look at Article 320 of the Civil Procedure Code, it reveals the non-immediate appealability of a court order against arbitration agreement. In this work, I argue that the provision must be amended and immediate appeal from a court order declining the enforcement of arbitration agreement must be allowed and even made compulsory.

Commercial Arbitration Before International Courts and Tribunals - Reviewing Abusive Conduct of Domestic Courts: 2011 American University Washington College of Law Annual Lecture on International Commercial Arbitration

On observing the international dispute settlement scene in recent years, one is intrigued by the fact that international courts and tribunals have increasingly been asked to rule on national court decisions relating to commercial arbitrations. These national decisions mainly deal with the enforcement of arbitration agreements or the annulment or enforcement of arbitral awards. They apply the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards1 and/or national arbitration laws. The international courts and tribunals seized of claims involving these national court decisions are primarily investor-state arbitral tribunals2 and human rights courts,3 and, in one less recent instance, the Permanent Court of International Justice (PCIJ).4 The phenomenon is intriguing because it challenges traditional conceptions in at least two respects. First, it challenges the understanding of the overall architecture of international commercial arbitration. The term ‘architecture’ is borrowed from W. Michael Reisman, who has written extensively on the topic, including an article on some of the issues addressed in this contribution.5 In fact, the traditional and most widely accepted conception of the architecture of international commercial arbitration builds on the finality of arbitral awards, with courts at the seat of the arbitration (sometimes called courts of primary jurisdiction) being competent to annul awards and courts at the place of enforcement (courts of secondary jurisdiction) being competent to rule on the enforcement or non-enforcement of awards in that particular forum.6 This structure rests, above all, on the New York Convention as well as on national arbitration legislation. This traditional architecture is a closed one in the sense that there is no recourse against a final decision by the courts at the seat of the arbitration on the annulment of an award. Similarly, there is no recourse against the final decision of the courts …

Giving Arbitration Some Credit: The Enforceability of Arbitration Clauses Under the Credit Repair Organizations Act

This Student Note addresses the unresolved question of the enforceability of arbitration agreements under the Credit Repair Organizations Act. While the Third and Eleventh Circuits have enforced such agreements, finding that the CROA does not preclude arbitration, the Ninth Circuit has refused to enforce these arbitration clauses, finding that the CROA entitles plaintiffs to a judicial forum. This conflict arises against a backdrop of debate over mandatory arbitration agreements between consumers and businesses. Scholars and legislators alike have argued that such agreements are unjust. A refusal to enforce such agreements, however, would fly in the face of the Supreme Court’s clear mandate to lower courts to enforce arbitration agreements. This Note examines the current circuit split over the enforceability of arbitration agreements under the Credit Repair Organizations Act in the context of both consumer protection law and relevant arbitration jurisprudence. Part I discusses the development of consumer protection law and the enactment of the Credit Repair Organizations Act, and examines the statute in detail. Part II describes the history and procedure of arbitration and examines the development of the Supreme Court’s policy regarding arbitration. Part III then analyzes the circuit split over the enforceability of arbitration agreements under the Credit Repair Organizations Act and the arguments for and against enforcing mandatory consumer arbitration clauses. Part IV advocates for the enforcement of such arbitration agreements, presenting several reasons why consumers will not be harmed by the enforcement of such agreements. Finally, Part IV proposes a simple solution to the problem: the elimination of credit repair organizations.

New Tools for an Old Quest: A Commentary on Jan Kleinheisterkamp, the Impact of International Mandatory Laws on the Enforceability of Arbitration Agreements

For as long as there have been governments and tradesmen, a tension has existed between a state’s claim to regulate conduct that affects its citizenry and commercial parties’ demands to resolve their disputes themselves in accord with their own expectations of appropriate conduct. Dr. Jan Kleinheisterkamp has embarked on a quest to find the balance in his essay, “The Impact of Internationally Mandatory laws on the Enforceability of Arbitration Agreements.” This commentary appraises his efforts.

Enforcement of Arbitration Agreement in the Dispute of Standby Letter of Credit

Enforcement of Arbitration Agreement in the Dispute of Standby Letter of Credit

The Impact of Internationally Mandatory Laws on the Enforceability of Arbitration Agreements

This article treats the impact that internationally mandatory rules of the forum state may have on the effectiveness of arbitration agreements. This question arises when claims are based on such internationally mandatory rules, but the parties submitted their contract to a foreign law. The specific problems of conflicts of economic regulation are illustrated and discussed on the basis of Belgian and German court decisions relating to commercial distribution and agency agreements. European courts have adopted a restrictive practice of denying the efficacy of such tandems of choice-of-law and arbitration clauses if there is a strong probability that their internationally mandatory rules will not be applied in foreign procedures. This article shows that neither this approach nor the much more pro-arbitration biased solutions proposed by critics are convincing. It elaborates a third solution, which allows national courts to reconcile their legislator’s intention to enforce a given public policy with the parties’ original intention to arbitrate and to optimize the effectiveness of both public interests and arbitration.