Field Of Commercial Arbitration Research Articles

Вопросы возмещения ущерба в третейском разбирательстве споров

The object of research is legal relations in the field of commercial arbitration. We consider the arbitration procedures for disputes, the subject of which is compensation for damage. Currently, forms of settlement of legal disputes that are alternative to state justice are popular, including commercial arbitration, which is becoming more widespread in the modern world, which is primarily associated with the development of economic turnover and busi-ness activity, as well as an increase in the volume of domestic and interna-tional economic connections. The relevance of the issues under research con-sists in the fact that the arbitration procedure of disputes in a strictly defined area related to compensation for damage is investigated as a means of pro-tecting the rights and interests of subjects of economic turnover. We show that it is in principle possible to resolve these disputes through arbitration. The research results can be implemented in legislative work on improving legislation in the field of arbitration of disputes and regulation of issues of compensation for damage.

Sociology of Commercial Arbitration: Tools for the New Times

In this study, the authors argue for a more refined methodology in research on commercial arbitration. Drawing on new developments in international commercial arbitration, they seek to create a typology of various aspects of legal conflict resolution and, as a consequence, to increase the relevance of empirical work on this topic. The article identifies three key areas of tensions, which generate new developments in commercial arbitration and cannot be addressed from the perspective of the existing sociological paradigms. First, the tension between procedural formality and flexibility can be observed, as reflected in the well-established judicialization trend, combined with a recent renewed interest in mediation and ‘soft’ hybrid procedures. Second, the confluence of global and local factors (as seen in the American and Asian ‘waves’ in arbitration) affects, inter alia, the professional culture of arbitration practitioners. Finally, the tension between public and private interests and values, which influences procedural preferences and solutions in the field of commercial arbitration, can be identified.

An Investment Court that Judges the Judges: A Case of Natural Selection?

Courts and arbitral tribunals have a dynamic and symbiotic relationship. In the field of commercial arbitration, we often perceive the court system to be the institution supporting the arbitral award and process. In the context of investment treaties enforced by investor-state dispute settlement (ISDS), courts have an added dimension. The courts (consisting of a judgment and the judicial process) can form the subject of review by an arbitral tribunal. So, if the international arbitral tribunal judges the fairness of the domestic courts of a state, and a domestic court in turn judges the appropriateness of the findings and process of an international arbitral tribunal, where does that leave the predictability and accountability of the ISDS system? The Chevron v Ecuador dispute provides an appropriate case study of this phenomenon, which has permeated from the local Ecuadorian courts to various international tribunals and courts of the United States, Canada, Brazil and Europe. Similarly, other ISDS claims have encroached (or come close to encroaching) on the task of judging courts of developed nations, such as the recent Eli Lilly v Canada case. Australia recently survived judgment of its legislature by an investment tribunal in the Philip Morris case, but are the judgments of Australia’s High Court now grounds for attack? The ISDS system has been the subject of criticism, with a particular focus on the inconsistency of tribunal determinations. The question thus arises, as to whether this ostensibly circular system of judging the judges promotes the rule of law. With case examples to offer context, this article evaluates whether a permanent international investment ‘court’, such as that proposed under the EU-Canada Comprehensive Economic and Trade Agreement (CETA), the EU-Vietnam Free Trade Agreement (FTA), and by the EU under the Transatlantic Trade and Investment Partnership (TTIP), contributes to consistency and the rule of law. In particular, this article identifies certain adequacies and inadequacies of that system in the context of an evolutionary institutional shift from the existing model based on private contract-based arbitration to that of a public ‘court’. Will this model result in an elevated standard of jurisprudence of international investment law, or just similar circular outcomes? The standard of review of this ‘court’ could just as equally promote a divergence, rather than a convergence, of international investment norms. Ultimately, any convergence between domestic and international legal norms is regulated by the reciprocal standard of deference and the willingness of states to consent to a particular investment treaty standard.

Javnost i tajnost arbitraže

It is very often heard that confidentiality is one of the principal advantages of arbitration. Nevertheless, confidentiality is not recognized as a general principle of arbitration and there are no provisions on confidentiality to be found in legal sources such as the New York Covention on Recognition and Enforcement of Foreign Arbitral Awards, or the UNCITRAL Model Law on International Commercial Arbitration. If arbitration is very often confidential, this comes from the nature of things rather than from hard and fast rules. This paper explores to what extent has confidentiality ceased to be the basic feature of arbitration in modern practice. The trend towards greater transparency has germinated mainly in the field of investment arbitration during the last two decades, but it had diffused accross international commercial arbitration. The UNCITRAL Rules on Transparency in Investment Arbitration are the result of that development that was driven by different forces and interests: those of arbitral institutions, arbitrators, legal counsel, non-governmental organizations, states and the general public. That development has enabled the system of quasi-precedent in investor-state arbitration and incited numerious challenges of arbitrators. It has informed the observers of gender and ethnic inequality prevailing in this line of legal business. Step by step, each segment of the arbitral procedure became open to the public in investor-state arbitrations: the names of the parties and the fact that the dispute is pending, the names of arbitrators and legal counsel, the arbitral award and the outcome of the dispute, procedural orders, memorials and exhibits, hearing and transcripts of the hearing. The things that would be just unheard of in the nineties, such as broadcasting of the hearing, started to happen in the new millenium. Influenced by this trend, the institutions predominantly operating in the field of commercial arbitration, such as the ICC, started revealing more of their own business. Although some of them, such as the LCIA still give great weight to confidentiality, it is generally difficult not to succumb in one way or another to the newest transparency trend, that is, like an irresistible force, changing the face of arbitration.

Recent Amendment to the Portuguese Law on Voluntary Arbitration

THE PORTUGUESE Law on Voluntary Arbitration (‘LVA’) was enacted by Law no. 31/86, of 29 August 1986 and entered into force on 29 November 1986. Its adoption took place not only as an answer to the need felt in this country by the doctrine and the practitioners of this field of law, but also in the wake of legislative reforms enacted in the field of commercial arbitration in the last three decades in many countries in Europe and other continents. It should be added that the fact that the UNCITRAL Model Law had been adopted in 1985 had a noticeable influence in the preparation of the LVA and in the contents of some of its provisions. The LVA provided Portugal with a statute on commercial arbitration which, for most of its contents, was in tune with the trend set by the legislation adopted in many countries dealing with commercial arbitration, both at the domestic and at the international level. The great majority of scholars, commentators and practitioners in this field of law acknowledged that the LVA was able to meet the requirements of commercial operators for a means of dispute resolution which might be a serious alternative to the use of state courts, which are virtually paralysed by the overwork that has been affecting them to a rapidly growing extent.

Online Dispute Resolution: The Emperor's New Clothes?

The question this paper addresses is how can information technology support the resolution of disputes through arbitration and mediation. The first and second parts will examine the benefits of online dispute resolution, some of the pitfalls it may present and how these can be avoided. The third part will then look at one of the more formidable obstacles--the issue of security of communications. The fourth part will examine the use of ODR in one particular sector, the traditional arbitral institutions. Much has been written about the application of ODR in areas other than commercial arbitration, such as consumer e-commerce and domain name disputes, where its use has been on the whole successful. Arbitration, being a fact-finding and decision-making process, seems ideally suited to IT. It is therefore interesting to see to what extent ODR is used in practice. The conclusion from this examination is that, although some IT is being used and increasingly so, this is still a developing field. This paper will conclude by discussing the reasons for this relatively slow take-up of ODR in the field of commercial arbitration and by speculating about future developments in this area.

The Ken-Ren Case: It is an Ado Where More Aid is Less Help

TO PARAPHRASE, but not to agree with, Mr Davenport's preceding commentary, it must be said that the decision of the House of Lords in Coppee–Lavalin S.A. v. Ken Ren can now be seen to be just as bad and therefore important in the field of commercial arbitration as some seemed to think it would be. While Mr Davenport invokes in his article's heading a Shakespearean title to lead one to believe that ‘nothing very much’ has happened to international arbitration in England, even Shakespeare could not make a silk purse of this decision. Mr Davenport's main point, it is submitted is wrong. He said that ‘ Coppee–Lavalin can be seen not to be a cause for anyone to think that the end of the world is at hand for international arbitration in England’. Actually, anyone can – many will think it. According to Mr Davenport, those who think ill of this decision are ‘extremists (in this case those prepared to the at the barricades for the cause of total arbitral independence)’. It is doubtful we shall soon see those two noted extremists, Lord Mustill and Sir Michael Kerr, being hoisted off those barricades. They were never near them. What Mr Davenport does not accept is that two senior English judges with unparalleled experience in international arbitration spoke wisely, Sir Michael in Bank Mellat and Lord Mustill in Ken-Ren ; but they were ignored by their generalist brethren. Such is the way the law is made – and not only in England. The issue in Ken-Ren , of course, is not a ‘barricades’ issue. It does not affect liberte ; it is about time and money – but sometimes lots of it. As Lord Mustill recognized, the sum could be so large as to stifle an arbitration entirely. Because of the …