Foreign Arbitral Research Articles

Foreign Arbitration As The Only Recourse In Resolving Trademark Disputes In A Civil Manner, Criticism of Act Number 20 Year 2016 About Brands and Geographical Indications

Introduction: Act Number 20 year 2016 on trademark and geographic indication opens up opportunities to resolve trademark disputes not only through the Commercial Court, but also to resolve disputes through the District Court.Purposes of the Research: The purpose of the study was to find a form of fair trademark dispute resolution. Conventionally, dispute resolution is usually done by litigation or dispute resolution before the court.Methods of the Research: Normative research is used to answer the formulation of problems regarding foreign arbitration as the only way to resolve trademark rights disputes in a civil manner. The method of approach is the approach of legislation that is to examine and analyze the regulation.Results of the Research: Indonesia also has repeatedly updated the regulation on trademark, but on the other hand, the level of trademark infringement is increasing, even the Commercial Court which should be a place for people to seek justice often gives decisions that do not reflect justice. Is it not better to start looking for other alternatives to resolve trademark disputes that can provide a sense of justice to the community. The court, which is only a mouthpiece of the acts, without regard to the conventions in the field of trademark that have actually been ratified by Indonesia, making the enforcement of trademark regulations in Indonesia, has not been able to provide a sense of justice to holders of rights to trademarks, especially holders of rights to well-known trademars. So that the settlement of famous brand disputes through foreign arbitration is expected to provide a sense of justice for the rights holders of the wellknown trademark.

„Brexito“ įtaka arbitražui: anti suit injunction ir investicinio arbitražo aspektai

Concentrating on a few material aspects in relation to the broader theme, the article analyses the effect of Brexit on international commercial arbitration. In particular, the piece firstly treats on the most recent UK Case Law in relation to anti-suit injunction – a phenomenon attributable to the Common Law in the context of the earlier European Union courts’ jurisprudence of the said instrument. Secondly, Brexit’s interplay with the ongoing global investment arbitration reform is considered. The article considers the globally recognised UN 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, on which Brexit had no adverse effect. When analysing the interplay between Brexit and the ongoing global investment arbitration reform, a particular regard is paid to the lack of investment arbitration provisions in the UK-EU Trade and Cooperation Agreement, as well as the termination of various relevant bilateral investment treaties. The article concludes that the influence of arbitration shall continue to grow, anti-suit injunction shall continue to be applied by the United Kingdom courts, and the Brexit’s interplay with the global investment protection overall and the investment arbitration in a particular reform is somewhat consistent.

Research on Foreign-Related Commercial Dispute Settlement Mechanism of the Belt and Road Initiative

This paper examines the current mechanisms and challenges in resolving foreign-related commercial disputes under the Belt and Road Initiative (BRI). It begins with an overview of the existing dispute resolution mechanisms, including the China International Commercial Court (CICC) and the "One-Stop" platform, highlighting their roles and limitations. The study then explores the differences between domestic and international mediation enforcement systems, the obstacles faced by foreign arbitration institutions entering the Chinese market, and the jurisdictional and functional limitations of the CICC. Drawing lessons from the WTO and the Singapore Convention on Mediation, the paper proposes several improvements: establishing a national-level BRI International Commercial Mediation Center, developing a comprehensive online dispute resolution platform, and enhancing the training and integration of foreign-related legal talents. By implementing these recommendations, the BRI dispute resolution mechanism can become more effective, fair, and internationally credible, thus supporting the smooth progression of the BRI.

Актуальные тенденции в законодательстве Китая о международном арбитраже

China did not adopt the UNCITRAL Model law in either version and its arbitration legislation often does not reflect the world-recognised practices of international arbitration. However, during the last few years, China has been softening its approach towards both international commercial and investment arbitration. The recent court decisions, adoption of the new Civil Procedure Law and proposal of the Draft Amended Arbitration Law signify gradual recognition of the concept of ‘seat of arbitration’ instead of relying on the domicile of the arbitration institution. Furthermore, Chinese courts have acknowledged the capacity of foreign arbitration institutions to administer disputes within mainland China — a significant shift from past practices where only Chinese arbitration commissions could administer arbitration proceedings in China under the Arbitration Law. This change is also reflected in the Draft Amended Arbitration Law. Another crucial legislative change is adoption of the Foreign State Immunity Law, which came into effect in January 2024. By enacting this law, China has shifted from absolute to restrictive immunity in disputes between a person or entity and a state. Thereby China allowed claims against foreign states arising out of commercial activities or international investment treaties to be considered in Chinese courts. Nevertheless, challenges remain in regards of recognition and enforcement of investment arbitral awards or conducting of investment arbitration in China. First, China’s reservation under the New York Convention 1958 limits recognition and enforcement of foreign awards to ‘commercial’ disputes, excluding investor-state disputes. Besides, it is discussed that China has not taken proper steps to recognise the ICSID awards as national ones for purposes of enforcement, even though it ratified the ICISD Convention. Furthermore, formally under the current Arbitration Law the investment arbitration is not possible. Finally, considering the latest legislative amendments, recent court practice and updated arbitration rules of Chinese arbitration institutions, it can be concluded that China has taken the pro-arbitration approach.

Hague choice of court convention: current state of affairs and application issues

The article provides a scientific and practical analysis of international legal aspects relating to the issue of determining the exclusive jurisdiction of a dispute by means of a choice of court agreement, which is quite relevant, since the ratification of the relevant Convention, which was signed in 2014, took place during the martial law regime, which complicates the process of implementing the provisions of the Convention in the Ukrainian legal system. The author analyses the current Ukrainian legislation in the area of determining the jurisdiction of private law relations with a foreign element, in particular, proceedings in cases related to the jurisdiction determination procedure, and international documents in the area of choice of court agreements, such as the Laws of Ukraine «On International Private Law», «On Amendments to Certain Legislative Acts of Ukraine in connection with the Ratification of the Convention on Choice of Court Agreements», the Hague Convention on Choice of Court Agreements and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The author identifies certain problems of enforcement of the choice of court agreement in the judicial system of Ukraine and issues of procedural protection of the parties to the agreement. It is noted that currently there is no definition of an exclusive choice of court agreement in national legislation and there are problems in the enforcement of a Ukrainian court decision by other states where no agreement on legal assistance has been concluded. The difficulty of applying the Convention on Choice of Court Agreements in comparison with the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards has been proven, which may lead to differences in the practice of use among the countries that are parties to the Convention. The author identifies the need to expand Article 4-1 of the Law of Ukraine «On Private International Law» and improve the implementation of disputes involving an exclusive choice of court agreement. The author emphasises the need to resolve problematic issues, as this will positively affect the international legal image of the state and prepare further legislative changes for more effective synthesis of the legal systems of Ukraine and the EU member states.

Juridical Review of the Implementation of Foreign Arbitration Awards in Indonesia in the Perspective of Constitutional Court Ruling Number 4/PUU-XXII/2024

The implementation of foreign arbitration awards in Indonesia from the perspective of Constitutional Court Decision Number 4/PUU-XXII/2024 is crucial in both international and domestic legal contexts. This article provides a strong legal basis for arbitration usage in resolving cross-border business disputes in Indonesia, both domestically and internationally. The research contributes to the legal field by offering an in-depth normative juridical analysis of how unfamiliar discretion grants are executed in Indonesia. Data analysis was carried out descriptively and qualitatively. The research topic, namely, the Juridical Review of the Implementation of Foreign Arbitration Decisions in Indonesia in the Perspective of Sacred Court Choice Number 4 is analyzed using deductive methods, which entail deriving conclusions from general to specific, particularly regarding the research topic. In this specific situation, a juridical survey of the execution of unfamiliar mediation grants in Indonesia becomes vital to comprehend the effect of established Court Choice number 4 on international arbitration practices, legal certainty, and the investment environment in Indonesia.

COMPARISON OF COMMERCIAL DISPUTE RESOLUTION MECHANISMS IN JORDAN AND THE MIDDLE EAST

This article provides a comprehensive comparison of commercial dispute resolution mechanisms across Jordan, Saudi Arabia, the United Arab Emirates (UAE), and Egypt. With the increasing globalization of business and the growth of foreign investments in the Middle East, an effective and efficient legal framework for dispute resolution is critical. The primary goal of this study is to provide a comprehensive comparative analysis of commercial dispute resolution mechanisms in Jordan and key Middle Eastern countries, with the aim of understanding their impact on the business climate and investor confidence in the region. The research employs a comparative analysis approach, drawing on a variety of sources including legal texts, case studies, and interviews with legal experts and business professionals from Jordan, Saudi Arabia, UAE, and Egypt. This comparative analysis examines the similarities and differences in the dispute resolution frameworks of these four countries, focusing on judicial processes, arbitration practices, and the adoption of alternative dispute resolution (ADR) methods. All four nations share a common legal heritage influenced by Islamic Sharia law and have adopted international standards such as the UNCITRAL Model Law to modernize their arbitration systems. Each country has established specialized commercial courts to expedite the resolution of business disputes and is a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, facilitating cross-border enforcement of decisions. However, there are distinct differences shaped by local legal and economic policies. For instance, the UAE features a dual judicial system that includes Sharia-influenced local courts and common law-based courts in its free zones, which are absent in the other three countries. The study highlights the strengths and weaknesses of each jurisdiction's dispute resolution mechanism and discusses ongoing reforms aimed at enhancing the effectiveness and efficiency of legal processes. This analysis not only aids in understanding each country's approach to dispute resolution but also serves as a guide for international businesses and investors considering operations in these regions.

Публичный порядок: к проблеме институционализации в международном гражданском процессе

Neither Russian nor foreign legislation has established criteria for determining public order, the understanding and guidance of which could provide stability and legal certainty for participants in disputes and economic relations. For procedural law and legal relations related to the execution of foreign court decisions and arbitrations, the contours of the definition of public policy are specific. The authors set out to consider the approaches that have developed in Russian law enforcement practice in terms of defining public policy as a criterion for checking the compliance of foreign arbitration decisions to be enforced in the Russian Federation, with the prospect of specifying Russian procedural legislation.

Exceptions to Enforcement of Foreign Arbitral Award in India and England

Exceptions to Enforcement of Foreign Arbitral Award in India and England

The New York Convention: How Courts Interpret Jurisdiction on Awards—A U.S. Perspective

There has been a significant body of U.S. federal case law where jurisdictional issues concerning the 1958 Convention on Recognition and Enforcement of Foreign Arbitral Awards have been litigated in the U.S. This article focuses on federal courts' interpretation on certain—not all—of those jurisdictional issues in connection with the Federal Arbitration Act—state law and state courts are out of the scope of this article.

INTERNATIONAL ARBITRATION AND THE NEW YORK CONVENTION- SETOFF WHILE ENFORCING AWARD

Can a respondent introduce a counterclaim or setoff request during proceedings to enforce an arbitral award under the New York Convention? The subject regarding set-off is constantly under arguments, amongst various jurisdictions having different views. This paper aims to analyze stances taken by different courts and discuss the pros and cons, disadvantages of allowing setoffs. Additionally, it will also delve into analyzing the relevant Articles of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“the convention”) to conclude the longstanding discussion on set off

The Recognition and Enforcement of Foreign Arbitral Awards: The New York Convention and the Afghan Law Perspectives

Aim: The aim of this paper was to evaluate the legal frameworks for recognition and enforcement of foreign arbitral awards in light of the New York Convention and the Afghan Arbitration law.
 Methods: In this research, the library research method was used and in terms of presenting research data and information, it’s a qualitative, descriptive and analytical research module.
 Results: As a party to the New York Convention, Afghanistan has the legal obligation to recognize and enforce foreign arbitral awards in its territory. Similarly, Afghanistan has recently enacted and ratified its law of arbitration which contains recognition and enforcement of arbitral awards. While generally the new law marks some progress, it continues to leave substantive and procedural uncertainty about how courts should recognize and enforce foreign arbitral awards. This uncertainty not only fails to comply with the terms of the New York convention, it also has the potential to discourage both national and foreign investment, ultimately threatening economic growth in Afghanistan. 
 Recommendation: This article recommends that by amending the arbitration law and enacting clear procedural rules upon recognizing, enforcing and executing foreign arbitral awards in light of UNCITRAL Model Law, first, Afghanistan can most likely promote foreign investment which is essential to steady economic growth, and at the same time, it helps Afghanistan to comply with the New York Convention on the recognition and enforcement of foreign arbitral awards.

Refusal to implement a foreign arbitration award in accordance with the 1958 New York Convention

Refusal to implement a foreign arbitration award in accordance with the 1958 New York Convention

ПРО ЗАСТОСУВАННЯ СУДАМИ КАТЕГОРІЇ «ПУБЛІЧНИЙ ПОРЯДОК» ЩОДО РІШЕНЬ МІЖНАРОДНОГО КОМЕРЦІЙНОГО АРБІТРАЖУ

The article examines the negative tendency towards excessive interference of state courts of Ukraine in international commercial arbitration by cancelling and refusing to enforce arbitral awards on grounds that go beyond the principle of legal certainty as an element of the Rule of Law. It was concluded that the expansive interpretation of the category of public order, applied in some decisions of the Supreme Court, will prevent the normal functioning of international commercial arbitration as an alternative way of commercial disputes' resolution in Ukraine, which not only undermines the investment prospects of Ukraine's economy, but also destroys the possibility of classifying Ukraine as a legal systems of civilized countries of the world, creates ample opportunities for abuses in the process of contesting and recognizing in Ukraine decisions of international commercial arbitration. It is substantiated that a violation of public order as a basis for refusing to recognize and enforce international commercial arbitration awards in Ukraine can be qualified in the case of clear disregard for direct prohibitions established by the state regarding the protection of sovereignty, fundamental human rights and freedoms. One of the ways to solve these problems is to the establish a legal ban on the execution of an arbitral awards in favour of the occupying country and persons related with it. Types of violations of the arbitration procedure as grounds for contesting an international commercial arbitration award or refusing to enforce it are comprehensively regulated in the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), and cannot be based on expansive interpretation by the court of the arbitration procedure from the point of view of compliance with the norms established by the Civil Procedure Code and the Economic Procedure Code of Ukraine.

Can North Korea Enforce Foreign Arbitration Awards?

The enforcement of foreign arbitration awards in North Korea is highly problematic due to the unique legal and economic structures. A dearth of enforcement options for property rights, rooted in limited individual ownership, widespread distrust in local currency, and limited movable assets, leads to a focus on real estate use right for enforcement actions. The absence of private real estate ownership and a proper registration system, however, pose considerable challenges. Article 65 of North Korea’s External Economic Arbitration Law provides seven grounds for refusal to recognize and enforce foreign arbitration awards, one of which allows for broad interpretation, possibly leading to governmental interference or non-enforcement. Furthermore, this article highlights the difficulties in enforcing arbitration awards via real estate assets due to restrictions on ownership and the absence of a real estate registration system. This article also analyzes ambiguities in transferring real estate use rights to foreign creditors following arbitration awards.

A proposal for international arbitration law in Namibia based on the UNCITRAL Model Law on International Commercial Arbitration

International business arbitration is not covered by Namibia's present arbitration law, the Arbitration Act 42 of 1965 (the Act). There is no explicit language in the Act that addresses foreign arbitration as the Act, solely by default, covers national or domestic arbitration. When it comes to international arbitration, the Act has many flaws. Modern commercial arbitrations are increasingly being guided by the Model Law on International Commercial Arbitration (MLICA) of UNCITRAL (the United Nations Commission on International Trade Law) or by state legislation that has been influenced by it. It is undeniable that Namibia must embrace MLICA, including the majority of the 2006 revisions of the MLICA, in order to participate in the global economic village. Furthermore, Namibia has not yet ratified the 1958-adopted New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (CREFAA), which has been hailed as the most effective treaty governing global trade. This article suggests that Namibia should implement both the MLICA and the CREFAA. If this strategy is not adopted, businesses in Namibia will be hesitant to engage in international business transactions due to the lack of legal certainty that the New York Convention and contemporary domestic arbitration legislation bring.

International Arbitration in the Context of Anti-Russian Sanctions: Issues Raised through Practice

In the context of the changing geopolitical situation and the introduction by various countries of anti-Russian sanctions and unilateral restrictive measures, Russian citizens faced numerous problems arising when trying to apply to a foreign arbitration institution they had previously chosen, when choosing arbitrators, experts and representatives. These problems arise at all stages of the proceedings: from its initiation and ending with the recognition and enforcement of the decision. The paper discusses the main problems and provides recommendations for their solution, supported by examples of judicial and arbitration practice, as well as references to the rules of regulations of various arbitration institutions (LCIA, ICC, SCC, HKIAC, SIAC, DIAC, ISTAC). Based on the analysis, it is concluded that the most effective ways to minimize the impact of sanctions on the proceedings are: 1) the choice of arbitration located in a neutral jurisdiction; 2) choice of ad hoc arbitration; 3) conclusion of alternative arbitration clauses; 4) an application to the Russian arbitration court with a statement recognizing its exclusive jurisdiction to resolve the dispute under Art. 248.1 APC RF.

Recognition and Enforcement of Annulled Arbitral Awards Under the New York Convention 1958

Purpose: The arbitral awards are enforceable internationally under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958. The Convention provides the discretion to the courts in enforcing State either to enforce or reject the international arbitral awards. The award set aside at the seat of arbitration is not enforceable, however the courts in some jurisdictions enforced such awards. In this context the paper examines how the courts in different jurisdictions justified while enforcing the annulled awards. Theoretical framework: Arbitration mechanism is frequently used for settlement of international commercial disputes. It enables party autonomy in drafting arbitration agreements, choosing the applicable law and determining the arbitration seat. According to Article V (1)(e) of the New York Convention the national courts may refuse to recognize or enforce the foreign award if it was set aside or annulled at the seat of arbitration or under law of which such award was given. In some jurisdictions the enforcing courts considered the annulment procedure followed by the courts and if such procedure was unfair, the courts in enforcing country have agreed to enforce the set aside awards. Design/methodology/approach: The author followed the legal analysis method to examine the approach of the courts from different jurisdictions that have enforced the annulled foreign arbitral awards and the legal comparative method observed to study the judicial decisions from various jurisdictions. Findings: The study concludes that Article V (1) of the New York Convention gives discretionary power to the enforcing courts regarding enforcement of foreign arbitral award. Hence, the courts in some jurisdictions enforced the annulled award if the set aside procedure was unfair, based on local grounds, biased, violated basic norms of justice, against the parties’ agreement or applied domestic law instead of the New York Convention. To secure the enforcement of award, the parties to the arbitration may agree that the arbitral award is not subject to challenge in any court at the arbitration seat or in the state in which the award is enforced and prefer a pro-arbitration State as a seat of arbitration. Research, Practical & Social implications: The study provides practical guidance to the arbitrating parties in drafting arbitration agreements to ensure the enforcement of an arbitration award internationally. Originality/value: The research on enforcement of annulled award under the New York Convention immensely helpful in guiding the arbitration parties in drafting the arbitration agreement, choosing arbitration procedure and seat of arbitration.

Public Policy as A Ground for Refusing Recognition and Enforcement of Foreign Arbitral Awards: New York Convention, UNCITRAL Model Law and Afghanistan Arbitration Law Perspectives

This article aims to examine the grounds for refusing the recognition and enforcement of foreign arbitral awards based on public policy considerations. It analyzes this issue from the perspectives of three different sources of law: the New York Convention, the UNCITRAL Model Law, and the Afghanistan Commercial Arbitration Law. It discusses the limited scope of the public policy exception under the Convention and the level of discretion given to national courts in applying this ground for refusal. Next, the article explores the UNCITRAL Model Law, which serves as a basis for legislation in many jurisdictions and is often incorporated into domestic arbitration laws. It examines the approach taken by the Model Law towards the public policy exception and compares it to the New York Convention. Finally, the article looks at the perspective of Afghanistan's Commercial Arbitration Law. It analyzes the specific provisions in this law that deal with the recognition and enforcement of foreign arbitral awards based on public policy grounds. Through this analysis, the article aims to provide a comprehensive understanding of how public policy considerations can impact the recognition and enforcement of foreign arbitral awards under different legal frameworks.

The Possibility of Applying the New York Convention to Recognise Nad Enforce the Foreign Arbitration Awards in Petroleum Disputes in Iraq

Objective: This study seeks to analyse how the New York Convention for the Recognition and Enforcement of Foreign Arbitration Awards can be applied to the recognition and enforcement of foreign arbitration awards in petroleum disputes in Iraq. Theoretical framework: Iraq acceded to the New York Convention in 2021. Iraq placed the commercial reservation, meaning that the Convention applies only to differences considered commercial under Iraqi laws. There is a great jurisprudential difference in determining the legal nature of petroleum contracts in Iraq. Thus, the Convention may not apply to these differences resulting from the petroleum contracts in Iraq. So, several studies from the literature have been used as a theoretical basis for this research. Method: This study is based on the doctrinal legal research methodology. Both primary and secondary data are used. Results and conclusion: The results indicate no specific rule in determining the nature of petroleum contracts. It is concluded that the Convention may not be applied to enforcing international arbitration awards in petroleum disputes in Iraq. Thus, it is necessary to reconsider the commercial reservation set by Iraq. Research implications: This study will help international oil companies know the extent of applying the New York Convention to the enforcement of international arbitration awards in Iraq. Originality/value: Improving the legal system for enforcing arbitration awards will create a friendly environment for arbitration in Iraq, which will help attract investment in the oil field.