Foreign Arbitral Research Articles

Hong Kong’s Role in the BRI Dispute Resolution: Limits of Law and Power of Politics

Abstract The Hong Kong government has aimed to make Hong Kong an international dispute resolution hub for decades. After China’s launch of the Belt and Road Initiative (BRI), Hong Kong has striven to make itself such a hub under the BRI. This article chooses arbitration as an example to examine Hong Kong’s role in the dispute resolution under the BRI from three perspectives, that is, its legal infrastructure, central and local governmental policy support, and challenges faced by Hong Kong. Detailed review reveals that Hong Kong’s legal infrastructure is well suited to resolve any disputes arising under the BRI and that there is also strong policy support from both the Chinese central government and the Hong Kong government. After examining challenges from Mainland Chinese arbitration institutions and self-contradiction within national policy documents, international and foreign arbitration institutions, and Hong Kong’s political instability and conflicts with the Mainland, the article suggests that the primary reason why Hong Kong has not been successful in getting its share of dispute resolution business under the BRI is its political instability and bad relationship with Mainland China. It argues that Hong Kong’s political skills in convincing both the Chinese central government and State-owned enterprises to choose Hong Kong as the forum for resolving disputes under the BRI are more important and will determine whether Hong Kong can get a fair share of the dispute resolution business under the BRI. In addition, the Hong Kong government and the relevant stakeholders in Hong Kong should also change their mentality from thinking only about Hong Kong’s interests to putting themselves in the shoes of the Guangdong, Hong Kong, and Macau (GHM) Greater Bay Area and come up with a collaborative strategy to develop dispute resolution mechanisms in the GHM Greater Bay Area together. Only in so doing will Hong Kong be able to get its share of dispute resolution business from projects under the BRI.

The Notion of ‘Arbitral Award’

International conventions are often based on terms and concepts to be understood independently from domestic laws. While a uniform and coherent interpretation of international instruments signifies, in and of itself, a valuable interest, the development of autonomous concepts within the framework of an international convention may be faced with several inherent impediments. Against this backdrop, this paper examines whether the framework of international commercial arbitration supports the establishment of an autonomous concept of ‘arbitral award’ in the context of, in particular, the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the UNCITRAL Model Law on International Commercial Arbitration. Relying on a comparative analysis of the notion of ‘arbitral award’ in core jurisdictions, this paper contextualizes the feasibility and even the desirability of an autonomous notion of ‘arbitral award’ in the framework of international commercial arbitration. In doing so, it draws, i.a., from a comparison of the underlying principles and objectives of the New York Convention and other treaties on the circulation of decisions and settlements in civil and commercial matters.

RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS IN THE FEDERATIVE REPUBLIC OF BRAZIL

Awarding procedure is not only limited to the final decision of the court of the stipulated country, likewise the Federative Republic of Brazil but also its significant procedural aspect for enforcing the arbitral decision. Practically, parties should enforce foreign arbitration awards without exception until it crosses the country's internal and external policy. The economic growth of a country demonstrates remarkable changing in legal behavior on enumerated country's private parties' activities as well. Trade relations among Brazilian companies have made a long way for dispute resolution. Addressing to sophisticated social approach to the legal nature of a stipulated country, it is not a surprising factor in applying the private international law demands in practice. The official government seeks a modern transparent approach to finalize and enforce foreign arbitral awards without reducing the freedom of activities of companies in the inner border and cross border transactions. All perspectives of legal nature and enforcement procedure on foreign arbitration awards in Brazil are not very harsh at first glance since as all parties are adequately applied to New York Convention 1958 on Enforcement of Foreign Arbitration Awards, however as all stereotypes on all jurisprudences, there are several weak points while applying a procedural background. This article analyzes and compares legal possibilities and challenges on the application of foreign arbitral awards in the Republic of Brazil. The findings figure out the stick points of procedural matters of enforcement of foreign arbitral awards and their complexity from the theoretical approach. The goal is achieved by solving several problems: - To research the procedure of enforcement of foreign arbitral awards in the Federative Republic of Brazil; - To identify the problems of procedural matters while enforcing the foreign arbitral awards; - To highlight the possible solutions and pathways for making easier the enforcement procedure of foreign arbitral awards in Brazil.

Analysis of the Procedure for the Recognition and Execution of Foreign Arbitral Awards in MERCOSUR

This research considers the current situation for the settlement of investment disputes in MERCOSUR member states. To achieve greater results, the current international legislation has established principles and a broad range of procedures that must be implemented on the trade bloc member states regarding the recognition and execution of foreign arbitral awards. This study applies a descriptive qualitative method. The findings of this study show that there are still some obstacles for the development of investment arbitration, despite its recognition in the current legislations. In this sense this work recommends harmonizing the legal procedures for the institution of arbitration and implementing a Supranational Arbitration Court inside MERCOSUR to increase and make effective the institution of international commerce in the region.

Development of the Institution of Arbitration in Kazakhstan: Problems of Theory and Practice

The article discusses current issues of the application of the legislation of Kazakhstan on arbitration, provides statistical data on the results of consideration of cases on the cancellation of arbitral awards, on the enforcement of arbitral awards and identifies some problems of theory and practice in this area.
 The aim of the study is a comprehensive analysis of judicial practice on the abolition of arbitral awards, as well as issues related to their enforcement, proposals have been developed on the formation of a uniform judicial practice and improvement of legislation. The work uses general scientific and special research methods: analysis, synthesis, abstraction, induction, deduction, logical and comparative legal method. As a result of the study, the author came to the conclusion that, in general, the norms of the Law of Kazakhstan ‘On Arbitration’, the Civil Procedure Code of Kazakhstan on the procedures for canceling arbitration decisions, recognition and enforcement of decisions of foreign arbitrations are consistent with international treaties.

Development of the Institution of Arbitration in Kazakhstan: Problems of Theory and Practice

The article discusses current issues of the application of the legislation of Kazakhstan on arbitration, provides statistical data on the results of consideration of cases on the cancellation of arbitral awards, on the enforcement of arbitral awards and identifies some problems of theory and practice in this area.
 The aim of the study is a comprehensive analysis of judicial practice on the abolition of arbitral awards, as well as issues related to their enforcement, proposals have been developed on the formation of a uniform judicial practice and improvement of legislation. The work uses general scientific and special research methods: analysis, synthesis, abstraction, induction, deduction, logical and comparative legal method. As a result of the study, the author came to the conclusion that, in general, the norms of the Law of Kazakhstan ‘On Arbitration’, the Civil Procedure Code of Kazakhstan on the procedures for canceling arbitration decisions, recognition and enforcement of decisions of foreign arbitrations are consistent with international treaties.

There is no impending crisis: a look beyond the Sixth Circuit’s decision to permit Section 1782 discovery for use in international commercial arbitration

Abstract There are few topics in international arbitration that engender more intense sentiments amongst practitioners than discovery. While debate endures over the applicability, suitability and extent of discovery within this autonomous system of justice, it is impossible to escape the reality that national laws and courts will and do have a role—often a significant one—to play in international arbitration proceedings, most notably to assist in the arbitral process. One US federal law in particular, 28 USC § 1782, has become increasingly relevant in recent years, as more parties attempt to harness its potency in facilitating discovery of evidence in aid of foreign arbitration. The application of the statute to foreign or international arbitral tribunals, however, is a murky question, and not one on which all US federal courts agree. Most recently, the US Court of Appeals for the Sixth Circuit broke with some of its sister circuits in finding that discovery under section 1782 is permissible for use in foreign or international commercial arbitrations. While many have denounced the decision as contrary to, or arguably likely to render less effective, principles or aspects of international arbitration deemed sacrosanct by arbitration enthusiasts, the effect of the Sixth Circuit’s decision on the broader practice of arbitration must not be overstated. Practitioners, tribunals, and the US federal district courts in particular already have ample means at their disposal to thwart section 1782’s potentially broad reach and effectiveness in creating inequities or turmoil in arbitration proceedings. Channeled effectively, these tools and proper considerations of discretion can ensure an appropriate balance between the need for critical evidence and the prevention of drawn-out, inequitable, and inefficient arbitral proceedings.

Striking a Balance Between Assistance and Interventionism: The Role of Courts in Rwanda-Seated Arbitrations

The African Arbitration Association was established in 2018 and its headquarters is in Kigali, Rwanda. This choice of location signals that Rwanda has made meaningful strides in improving its arbitration environment, at least in the opinion of African states. Many questions will arise as to whether Rwanda-seated arbitrations do indeed rest in a legally friendly environment, and receive optimum support of courts which act to foster the efficiency and effectiveness of arbitrations. The interplay between courts and arbitral tribunals in dealing with Rwanda-seated arbitrations is the subject of this article. Party autonomy, which broadly underscores the freedom of the parties to decide how their disputes should be resolved, is one of the most important principles in arbitration. This principle naturally translates to the autonomy of the arbitral process and notably the freedom of this process from undue judicial interference. While courts are indispensable in the success equation of the arbitral process, too much judicial intervention in matters of arbitration may have serious repercussions on the efficiency of arbitration. This article examines the autonomy of the arbitral process under the law and practice of arbitration in Rwanda. In doing so, the article discusses different practices in the leading places of arbitration on the interplay between courts and arbitral tribunals in dealing with matters of arbitration and compares these with the corresponding law and practice governing Rwanda-seated arbitrations. It concludes that, with the pro-arbitration stance often demonstrated by the courts in Rwanda and their sparing involvement in the arbitral process, the arbitration environment is as friendly as it is in most other states that are signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention, 1958). Rwanda-Seated Arbitrations, Mandatory Provisions, Party Autonomy, Jurisdictional Challenges, Kompetenz-Kompetenz, Negative Effect of Kompetenz-Kompetenz, Manifestly Void, Stay of Court Proceedings, Judicial Non-Interference, Pro-Arbitration Stance, One-Stop Adjudication

The Influence of the Law of the Country of the Place of Enforcement of the Arbitral Award on the Settlement of Disputes in the International Commercial Arbitration

The article examines the key aspects of the impact of the law of the place of enforcement of the arbitral award on arbitration and directly on the recognition and enforcement of arbitral awards, given the study of doctrinal positions, regulations and relevant case law. It was found out that the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 refers to the procedural rules of the country of enforcement to settle matters inherent to the recognition and enforcement of foreign arbitral awards not governed by the Convention, establishing only basic and fairly simple formal requirements for the said procedure, which is one of the strong characteristics of the conventional regime of recognition and enforcement of arbitral awards. In light of this, it is concluded that such an approach is moderate and takes into account the impossibility and lack of practical necessity of unification at the international treaty level of procedural features of recognition and enforcement of arbitral awards, establishing only basic principles and requirements. It is substantiated that there are two components of the law of the place of enforcement of the arbitral award, which regulate the recognition and enforcement of arbitral awards within the relevant jurisdiction, namely substantive and procedural, which, however, are contained in single legal acts — mostly national arbitration laws. The author emphasizes the crucial role of the law of the place of enforcement of the arbitral award in the material and procedural aspects for the procedure of recognition and enforcement of arbitral awards within the relevant jurisdiction. It is concluded that the unification of material grounds for refusal of recognition and enforcement (in particular, non-arbitrability of the subject matter of the dispute and contradiction of the award to public policy as grounds that can be raised by the competent judicial authority at the place of enforcement ex officio, regardless of reference to them by opposing party), as well as the consolidation of basic procedural requirements and principles is carried out by the New York Convention of 1958, which leaves to the discretion of the national legislature, on the one hand, the settlement of minor aspects of the procedure, but, on the other hand, recognizes its full discretion in determining the limits of objective arbitrability, the content and specific filling of the category of international public policy applicable in the relevant jurisdiction. Keywords: arbitral award, international commercial arbitration, applicable law, arbitration process, public policy.

The Foreign Arbitration Clause; An Adverse Effect on Pakistan

The Foreign Arbitration Clause; An Adverse Effect on Pakistan

Pendaftaran Pelaksanaan Putusan Arbitrase Asing yang Belum Final

Indonesia regulates International Arbitration in the Article 65 to Article 69 of Law Number 30 of 1999. The registered award must always fulfil the requirements in Article 66 in order to be admitted and proceeded, and the applied awards must fulfil the requirements in article 67 in order to obtain exequatur. When the requirements do not meet the terms of engagement, as if the award is not finalized or in an appeal process or put aside, Indonesia may declare to refuse the enforcement. The purpose of the study was to find out about the application of foreign arbitration awards and the response of the District Court of Central Jakarta towards the applied award if the application of the foreign arbitration had not been finalized yet. The result and the discussion was that Law Number 30 of 1999 has not regulate in detail on how the foreign arbitration award can be refused, Therefore, it is necessary to have an amendment and a more detailed regulation on the requirements of application and the reasons for refusing foreign arbitration awards.

POTENTIAL UNIFICATION IN THE FIELD OF CROSS-BORDER CONTRACTUAL RELATIONS IN THE BRICS COUNTRIES

The article is devoted to the peculiarities of regulation of cross-border contractual relations that are being developed within the BRICS countries in compliance with universal international treaties. The author has outlined the prospects and problems with which traders from BRICS countries are facing when concluding contracts. International treaties, which contain, above all, uniform substantive rules, play a great role in concluding cross-border contracts. However, all the BRICS countries are member-states to very few treaties. The author of the article has revealed that such conventions still exist, although not only in the contractual field. The article pays special attention to the peculiarities of application of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, the Cape Town Convention on International Interests in Mobile Equipment of 2001 and, indeed, the Vienna Convention on Contracts for the International Sale of Goods of 1980 (although only three BRICS countries are involved, it can also be applied to India and South Africa).

Practice in Vietnam About the Recognition and Enforcement of Foreign Arbitral Awards Under the Code of Civil Procedure 2015 and Recommendations for Improving the Efficiency of Law Application

On the basis of studying the process of applying the provisions of the Civil Procedure Code on the recognition and enforcement of foreign arbitral awards, the author has made comments on regulations of the law as well as analyzed the problems arising from the application of the law in practice as the basis for the proposal of some recommendations to improve the law.
 Keywords: International judiciary, foreign arbitral award, recognition and enforcement of foreign arbitral awards.

Tackling Local Protectionism in Enforcing Foreign Arbitral Awards in China: An Empirical Study of the Supreme People's Court's Review Decisions,1995–2015

AbstractIn an effort to fight against local protectionism in court enforcement proceedings, China's Supreme People's Court (SPC) promulgated its “Notice on relevant issues pertaining to the people's court handling foreign and foreign-related arbitration” in 1995. Pursuant to this Notice, all Intermediate People's Courts have to report to the SPC and obtain its approval for any decision not to enforce a foreign or foreign-related arbitral award. However, the effectiveness of this internal reporting mechanism in constraining local protectionism has never been empirically tested. This study is based on 98 publicly available non-enforcement reply opinions rendered by the SPC after lower courts have made and reported preliminary non-enforcement decisions. It analyses whether these non-enforcement decisions show any pattern of local protectionism. Statistical results do not suggest that local protectionism is a major barrier hindering effective enforcement of foreign or foreign-related arbitral awards in China. We therefore contend that this internal reporting system may serve other functions by providing an alternative tool to reinforce judicial oversight in spite of China's weak appellant system. At the same time, the Chinese government seems to rely on this internal reporting system to achieve important policy goals. In this sense, analysing the functionality of this internal reporting system offers insights into this mechanism for top-level judicial control.

The China’s Excution on the Recognition and Enforcement of Foreign Arbitral Awards

The China’s Excution on the Recognition and Enforcement of Foreign Arbitral Awards

Implication of International Instruments in ADR Process; an Experience of Nepal

Conciliation, mediation and arbitration are major approaches of Alternative Dispute Resolution (ADR) process. In comparison to arbitration, conciliation and mediation are less binding as the award of arbitration is final if there is no appellate clause. There are different types of arbitration which are domestic and foreign arbitration, Ad-hoc arbitration, institutional arbitration, bi-party and multiparty arbitration etc. UNCITRAL Model Law of Arbitration, 1985, UNCITRAL Arbitration Rules, 1976, International Chambers of Commerce Rules of Arbitration, 1998, International Center for Settlement of Investment Dispute Rules of Procedure for Arbitration Proceeding, 1984, Arbitration Rules of London Court of International Arbitration, 2014, and the Australian Center for International Center for Commercial Arbitration Rules, 2016 are major instruments of international arbitration. Arbitration Act, 1999 (2055 BS) and Arbitration (Court Procedure) Rules, 2002 (2059 BS) are the domestic instruments for arbitration for Nepal. Parties of the agreement can apply any foreign instruments of arbitration as well. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, Geneva Protocol on Arbitration Clause, 1923, Geneva Convention on the Execution of Foreign Arbitral Awards, 1927, Inter-Arab Convention on the Enforcement of Judgment and Awards, 1992 and UNCITRAL Model Law, 1985 clearly mentioned about the applicability of foreign arbitral award. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 was established as a result of dissatisfaction with the Geneva Protocol on Arbitration Clauses of 1923 and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927. Under Nepalese legislation, a party should submit an application to the High Court along with the original or certified copy of the arbitrator's award, original or certified copy of the agreement, and official translation in Nepali language including any treaty if so within 90 days of award. If all conditions are fulfilled, High Court forwards the award to the District court for its enforcement if the domestic law permits. Although, there are the greater roles of ADR including arbitration, it is not a panacea to solve the disputes. If effectively applied, it is the best and participatory method of dispute resolution system.

Particularity of Recognition and Enforcement of Foreign Arbitral Awards in the Russian Federation: Public Policy

Summary This article elaborates on the issue of recognition and enforcement of foreign arbitral awards in the Russian Federation. It is common knowledge that foreign companies seeking R&E in Russia suffered damage because of the broad interpretation of Russian public policy in the past decades. However, it is uncertain how the present judicial development appears like and where it will lead in the future. The article specifically considers two basic ideas on the issue at hand: one is slightly critical (Karabelnikov) while the second is rather optimistic in regard with the recent development (Zykov). The main goal is to introduce the issue to the respective readers and to try to inflame a discussion.

Three Time Bombs Under International Arbitration. Where is it Going?

International arbitration is popular but its continued success is not assured. There are serious challenges. Judicialisation, public policy issues, and third party effect are major threats to credibility and legitimacy. The situation is coming to a head in foreign investment arbitration but a different or alternative approach may also be required in commercial and financial arbitration and is discussed.

Arbitration and Other Alternative Dispute Resolution for Commercial Dispute (Reviewed from the Strengths of ADR and Decision of Arbitration)

Arbitration and other alternative dispute resolution (ADR) can be used as an option for parties who conduct commercial transactions. This research is crucial to analyse what is the best dispute method for parties to be able to resolve their commercial business disputes. It is argued that the most important of ADR is the efficiency and effectivines in relation to the enforcement of a judgement on the commercial dispute especially foreign arbitral award . This research also seeks to analyse strengths and weaknesses of each ADR method because it is very important to know in resolving disputes in the field of trade and also related to the implementation of decisions, especially in foreign arbitral award and how to improve decisions and applied in Indonesia in relation to commercial dispute. The research method used in this research is normative juridical consisting of primary, secondary and tertiary legal materials, which were collected by conducting a literature review and interview technique and then processed qualitatively according to the problems and the theoretical framework logically and systematically to achieve the objective of this research, namely finding the best alternative dispute resolution in commercial dispute resolution in business transactions. This paper argued that while each of ADR method has their own strengths and weaknesses, business actors mostly prefer too have arbitration method as their ADR method in solving their disputes. However,the applying mechanism of foreign arbitration awards need further attention from Indonesian government.

Development of Non-Litigation Civil Dispute Settlement Model Based on Madurese Local Wisdom to Reduce Cases Accumulation in Court

Arbitration and other alternative dispute resolution (ADR) can be used as an option for parties who conduct commercial transactions. This research is crucial to analyse what is the best dispute method for parties to be able to resolve their commercial business disputes. It is argued that the most important of ADR is the efficiency and effectivines in relation to the enforcement of a judgement on the commercial dispute especially foreign arbitral award. This research also seeks to analyse strengths and weaknesses of each ADR method because it is very important to know in resolving disputes in the field of trade and also related to the implementation of decisions, especially in foreign arbitral award and how to improve decisions and applied in Indonesia in relation to commercial dispute. The research method used in this research is normative juridical consisting of primary, secondary and tertiary legal materials, which were collected by conducting a literature review and interview technique and then processed qualitatively according to the problems and the theoretical framework logically and systematically to achieve the objective of this research, namely finding the best alternative dispute resolution in commercial dispute resolution in business transactions. This paper argued that while each of ADR method has their own strengths and weaknesses, business actors mostly prefer too have arbitration method as their ADR method in solving their disputes. However,the applying mechanism of foreign arbitration awards need further attention from Indonesian government.