Arbitration Framework Research Articles

A spotlight of amendments in the Jordanian Arbitration Law in 2018: إضاءات على أهم التعديلات التي طرأت على قانون التحكيم الأردني 2018

Jordan has witnessed rapid development in its trade relations after its accession to the World Trade Organization and the signing of many agreements accompanied by rapid economic development. This led to the amendment of the Arbitration Act in 2001. The amended law introduces new and anticipated changes to the procedural framework for arbitration in Jordan, many of which can be traced to the UNCITRAL Model Law as amended in 2006. The old law was amended in 2001, prior to the recent amendment to the UNCITRAL Model Law. In addition, the amended law provides for much-needed clarity on some of the ambiguities of the former regime. The new law is based on the 2006 UNCITRAL Model Law and is therefore considered to be the closest to the Model Law, although it contains some amendments to its provisions, in order to comply with Jordanian legislation. we intended to address the entire law. However, since it is impossible to cover this accurately ("Amended Law"). Because of the limited space, we have to write, we will, therefore, cover the main points and compare them with the Model Law. The amended law shall enter into force thirty (30) days after its publication in Official Gazette No. 5513/2018 dated 2 May 2018. The amended law shall apply to arbitration in Jordan, as well as arbitration agreed by the parties to subject such arbitration proceedings to the amended law. On the nature of the legal relationship that arouses the dispute. Explanation of the substantive amendments that have been made including the scope of application of the new law and the added definitions and interpretations 'Procedures for the formation of the arbitral tribunal' Notification of the parties to the dispute 'Arbitration agreement' Challenges of the arbitrators and their isolation 'Representation of the parties' Articles 51 and 52 and the amendment to the Constitutional Court's decision to distinguish Sadr's decision from the Court of Appeal as a competent court in the previous law. : ، ،

The Supreme Court's Landmark Decision in New Prime Inc. v. Oliveira: A Panoptic View of America's Civil Justice System and Arbitration

On the surface, the 2019 U.S. Supreme Court case of New Prime Inc. v. Oliveira involves the trucking industry and a narrow issue of arbitration law. But on a deeper level, this case raises fundamental questions about America’s civil justice system and how our society should resolve disputes. This article examines the New Prime decision from past, present, and future points of view. From the perspective of the past, the New Prime case stands apart as representing the first decision in several decades where the Supreme Court has ruled in favor of workers and rejected an expansive interpretation of the Federal Arbitration Act. Viewed from a present perspective, New Prime can also be viewed as part of the larger sociopolitical environment in which it was issued. There has been a recent, developing backlash against the widespread use of forced arbitration in America, along with bipartisan support for legislative reforms as well as some private initiatives to cut back on the use of arbitration. Also, the contentious confirmation hearings of Justice Brett Kavanaugh and President Donald J. Trump’s attacks on the judiciary have raised questions about partisanship and the independence of the judiciary. The unanimous New Prime decision and its curtailment of arbitration arguably reflect the particular environment in which it was issued. Finally, looking ahead to the future, the New Prime case can solve some problems involving the FAA and raise several others. The Court’s analysis in New Prime suggests a new judicial approach that can be used to fix the legal framework for arbitration. New Prime also raises larger questions about the scope of the FAA and which workers are exempt from its coverage, and workers in the gig economy, such as Uber and Lyft drivers, could be impacted and no longer forced to arbitrate.

The 2019 Netherlands Model BIT: riding the new investment treaty waves

Abstract Investor–state arbitration is undergoing a paradigm shift with several countries and regional blocs rethinking the best way to protect investor rights while retaining sovereign prerogatives. This is where the Netherlands fits into the narrative. Its decision to modernize appears to follow the contemporary developments in investment arbitration, including heightened public scrutiny on the effect of investment treaties on regulatory space and the investor-to-state dispute settlement system, as well as the Post-Treaty of Lisbon European Union framework for investment arbitration. On 16 May 2018, the Dutch Ministry of Foreign Affairs published a draft for a new Model Bilateral Investment Treaty (BIT) on the Government’s website. This was done with a view to updating the earlier Model BIT which dates. Through public consultation, individuals and interest groups were invited to share their views. The Government amended the 2018 Draft Model BIT after deliberating on the public reactions it had received, and circulated a new draft on 19 October 2018. Subsequently, after parliamentary debate in February 2019, the Dutch Government published an updated Model BIT on 22 March 2019. In this article, we critically examine the 2019 Final Dutch Model BIT and examine it in light of the global rethink on investment law and policy.

Reimagining the Framework for Resolving Intra-African Commercial Disputes in the Context of the African Continental Free Trade Area Agreement

AbstractThis article examines the effectiveness of the framework for the resolution of intra-African cross-border commercial disputes, arising from the projected increase in intra-African trade in goods, services, and investments under the African Continental Free Trade Area. It examines the peculiar nature of intra-African trade and of the participating entities to provide the context to discuss the three major processes adopted in commercial dispute resolution (litigation, mediation, and arbitration) in Africa. It then argues for the promotion of arbitration as the dispute resolution process of choice for such disputes. It reimagined the framework for arbitration at the continental level and made two proposals targeted at the greater efficiency of the process: the designation of Regional Arbitration Centres across the African Union's eight recognized Regional Economic Communities, to administer such references; and the establishment of an African Commercial Court as a one-stop court for the enforcement or annulment of the final award.

Third Party Funding in Arbitration: Questions and Justifications

Utility of third party funding is an undeniable fact, especially where a party is under financial strain, yet its increased usage in private arbitration has given rise to a number of substantive and procedural issues. In view of this, the present paper attempts to map the growing utility or otherwise of the mechanism of third party funding, and analyses its various nuances and legal sustainability within the framework of international arbitration. Further, an attempt is made to analyse the ways and means of ameliorating the utility of third party funding and for enhancing its acceptance in the global arbitration community.

ARBITRATION AS A MECHANISM TO RESOLVE ISLAMIC BANKING DISPUTES IN MALAYSIA: CHALLENGES AND DRAWBACKS

Malaysia has shown tremendous progress in the arena of Islamic banking and the finance industry, and has become an essential Islamic financial hub within the region. The comprehensive legal framework consisting of legislation and dispute resolution mechanisms have been crucial elements that ensured the robust development of the industry. The court system and arbitration are two significant platforms for the settlement of Islamic banking disputes that are brought before them. However, the court system has been widely favoured compared to the arbitration, even though both approaches have almost identical roles. Therefore, one question arises; why is arbitration less preferred compared to the court system? By using legal research methods, this article seeks to analyse the challenges and drawbacks that faces the current arbitration framework when dealing with Islamic banking disputes. This study suggests that the Malaysian arbitration framework faces several challenges such as, issues regarding high-cost, high-formality, less-speed, and the uncertainties when referring any Shariah matters to the Shariah Advisory Council. This article suggests that some improvements should be made by the relevant authorities and establish the necessary statutory amendments to strengthen the role of arbitration in Malaysia as a complementary forum to the court system in settling Islamic financial disputes.

ARBITRATION UNDER THE AFRICA CONTINENTAL FREE TRADE AGREEMENT: STRENGTHENING TRADE DISPUTE RESOLUTION IN AFRICA

The Africa Continental Free Trade Agreement (AfCFTA) represents a groundbreaking effort to promote regional economic integration and trade facilitation within the African continent. The agreement was adopted by African Union member States in March 2018, and after the ratification process was completed by the required number of countries, it entered into force on May 30, 2019. With the operationalization of the AfCFTA, disputes among member States and other parties are inevitable. To ensure effective resolution of these disputes, the AfCFTA – Dispute Settlement Mechanism Protocol offers three broad dispute resolution options. This article explores the arbitration provisions under the AfCFTA, evaluates their potential strengths, challenges, and offers recommendations for strengthening the arbitration framework within the trade agreement. Capacity-building initiatives will empower stakeholders to engage effectively in arbitration proceedings, while promoting diversity and inclusivity in arbitrator appointments will instill confidence in the fairness of the process. Increased transparency and public awareness will foster trust and wider utilization of arbitration, while collaboration with established arbitration institutions will enrich the AfCFTA dispute resolution practices.

Free Zone Arbitration in the United Arab Emirates: DIFC v. ADGM (Part II)

This is Part II of a two-part article that deals with the phenomenon of free zone arbitration in the United Arab Emirates. Part I, which was published in the last issue of this journal, discussed in some detail the concept and practice of free zone arbitration in the Dubai International Financial Centre (DIFC). This Part II discusses free zone arbitration in the more recently established Abu Dhabi Global Market (ADGM) and highlights the main differences between the two. In doing so, Part II will take a closer look at the judicial and legislative framework of the ADGM, including in particular the main provisions and the operation of the 2015 ADGM Arbitration Regulations, the institutional framework of arbitration in the ADGM, the curial function of the ADGM Courts in ADGM-seated arbitrations and the recognition and enforcement of domestic (non-)ADGM and foreign arbitral awards in the ADGM. Part II also explores to what extent the ADGM Courts are envisaged to serve as a host or conduit jurisdiction in the terms proposed and practiced by their DIFC counterparts.

The Role of Emergency Arbitrator in Commercial Arbitration (Comparative Study)

This study dealt with the arbitrator of emergency in commercial arbitration and this development is the most innovative in the rules of commercial arbitration of the International Chamber of Commerce in Paris in 1912, where a new trend was adopted with regard to interim and urgent measures before the final form of the arbitral tribunal. The International Chamber of Commerce has already adopted the rules of this system before the Arbitration Institute of the Stockholm Chamber of Commerce.
 
 The emergence of new systems in commercial arbitration needs to be examined in order to understand, interpret and check its suitability to the needs of the parties to the dispute in the framework of commercial arbitration. Among the most important new systems are the rules of emergency arbitrator, which have been taken by many commercial arbitration centers because of the advantages of one or both parties when it needs urgent and incidental measures that cannot wait until the formation of the arbitral tribunal. Therefore, the appointment of an emergency arbitrator may be requested for such measures. Many of the centers have organized such rules as Stockholm Rules of Arbitration in Sweden and ICC in Paris and others.
 
 The study concluded with a set of results, the most important of which was that the emergency arbitrator is one of the modern rules that serve commercial arbitration, which began by relying on Western legal systems not Arab laws.

Free Zone Arbitration in the United Arab Emirates: DIFC v. ADGM: (Part I)

This article is published in two parts and discusses the concept and practice of free zone arbitration in the United Arab Emirates (UAE). More specifically, the article seeks to highlight the status quo of arbitration in the Dubai International Financial Centre (DIFC) and the Abu Dhabi Global Market (ADGM), both of which may serve as an offshore seat of arbitration in their own right. Both the DIFC and the ADGM offer a common law alternative to arbitration in onshore UAE. Part I of the article focuses on arbitration in the DIFC. It provides an introduction to the judicial and legislative framework of the DIFC, including in particular the main provisions and the operation of the DIFC Arbitration Law, the institutional framework of arbitration in the DIFC, the curial function of the DIFC Courts in DIFC-seated arbitrations, and the recognition and enforcement of domestic DIFC and foreign arbitral awards in the DIFC. Part I also discusses the DIFC Courts’ status as a conduit jurisdiction facilitating the recognition and enforcement of non-DIFC awards for onward execution in onshore Dubai and beyond.

Application of Article 90 of the Russian Code of Criminal Procedure at the Present Stage

Application of Article 90 of the Code of Criminal Procedure «Prejudice» raises a number of diffiulties in practice, which are due to changes introduced by the Federal Law of 29.12.2009. Since that time, the so-called incontrovertible, intersectoral prejudice operates in domestic criminal proceedings. It obliges the law enforcement offiial to recognize the circumstances established by the court’s decision made in the framework of civil, arbitration, administrative or criminal proceedings. This allows unscrupulous participants in criminal proceedings, using differences in proving in criminal and civil cases, to obtain court decisions in the civil litigation procedure and with their help to inflence the proceedings in a criminal case. This problem is discussed by the author. Article 90 of the Code of Criminal Procedure was the subject of consideration of the Constitutional Court of the Russian Federation. In its decision, the Court suggested using a sequence of actions in case a judgment is based on false evidence. At the same time, there are a number of obstacles that make it diffiult to implement the rulings formulated by the Court. The analysis of judicial practice carried out in the article allows the author to conclude that the courts mainly use intra-branch prejudice. This is due to the fact that it corresponds to both the type of modern domestic legal proceedings and to the provisions of evidentiary right.

Mandatory Private Treaty Application? On the Alleged Duty of Arbitrators to Apply International Conventions

International arbitration aims at the peaceful settlement of disputes by practical, foreseeable and reasonably fast decisions, thereby eventually serving the development of international trade. The creation of uniform law by way of international conventions is driven by a very similar aim, namely the removal of legal barriers in international trade through the adoption of uniform rules for various types of international transactions. While both phenomena generally act in a complementary manner, their interaction occasionally gives rise to more intricate questions. One of them is: Do arbitrators have a duty to apply international conventions? A significant number of authors indeed assume that such a legal obligation exists; an approach referred to in the present contribution’s title as ‘mandatory private treaty application’. The contribution investigates possible sources for such an arbitrators’ duty. It commences by scrutinizing a number of international conventions that have created uniform substantive law for contracts of sale or contracts of carriage, uniform conflict-of-laws provisions or uniform rules for matters of arbitration. The conventions’ wording and purpose demonstrate that no obligations for arbitral tribunals flow from the respective conventions themselves, because these are addressed merely to State courts as organs of a convention’s state parties. International conventions, being treaties under public international law, implicitly tolerate and respect arbitral tribunals and their nature as private institutions. However, an arbitrator’s duty to apply conventions may well exist as a duty created and designed by the parties through their arbitration agreement, either directly (by choosing a convention as the applicable law) or indirectly (by vesting the arbitral tribunal with determining the rules of law applicable to the merits). In conclusion, the present contribution accordingly argues that treaty application is only mandatory for arbitrators if the legal arbitration framework says so, resulting in a peaceful coexistence of treaty law and arbitration practice.

Comparative Analysis as an Autonomization Strategy in International Commercial Arbitration

The article explores the unique character of international commercial arbitration as a globalized phenomenon, where universalizing and harmonizing effects have largely been achieved by private means and spontaneous expansion, outside the States’ direct intervention and control. The evolution of arbitration in recent decades from an alternative to the core mechanism of deciding cross-border commercial controversies is considered. Privatization of this area of dispute resolution is examined in the context of its growing autonomization, marked—as observed by Emmanuel Gaillard—by notable changes in its theoretical representations and narratives. This specific conceptual, institutional, and procedural framework of commercial arbitration reflects the demands of decision-making exercised in a legally, linguistically, and culturally diversified environment. Interpretation and application of law in arbitral cases requires skillful navigation between the rules of domestic, international and transnational origin, performed not only on the level of substantive norms, but also on those involving conflict of laws and procedure. As a consequence, comparative analysis plays a critical and complex role in arbitral decision-making, reaching beyond the mere demands of rendition of relevant provisions, and has been defined sensu largo as a ‘comparative mindset’, characteristic to international commercial arbitration. The article examines this phenomenon and its mechanics, challenges for legal professions and the effect of transnationalization of relevant domestic rules. It also explains the role of comparative analysis as an important instrument, used strategically in the processes of autonomization of commercial arbitration.

A flexible I/O arbitration framework for netCDF‐based big data processing workflows on high‐end supercomputers

SummaryOn the verge of the convergence between high‐performance computing and Big Data processing, it has become increasingly prevalent to deploy large‐scale data analytics workloads on high‐end supercomputers. Such applications often come in the form of complex workflows with various different components, assimilating data from scientific simulations as well as from measurements streamed from sensor networks, such as radars and satellites. For example, as part of the Flagship 2020 (post‐K) supercomputer project of Japan, RIKEN is investigating the feasibility of a highly accurate weather forecasting system that would provide a real‐time outlook for severe guerrilla rainstorms. One of the main performance bottlenecks of this application is the lack of efficient communication among workflow components, which currently takes place over the parallel file system.In this paper, we present an initial study of a direct communication framework designed for complex workflows that eliminates unnecessary file I/O among components. Specifically, we propose an I/O arbitration layer that provides direct parallel data transfer (both synchronous and asynchronous) among job components that rely on the netCDF interface for performing I/O operations. Our solution requires only minimal modifications to application code. Moreover, we propose a configuration file–based approach that allows users to specify the desired data transfer pattern among workflow components, offering a general solution for different application contexts. We present a preliminary evaluation of the proposed framework on the K Computer (running on up to 4800 compute nodes) using RIKEN's experimental weather forecasting workflow as a case study.

Public‐Private Arbitration and the Public Interest under English Law

Together with the increase in the number of public‐private contracts, recent years have seen a marked proliferation in public‐private arbitrations. This article explores the public interest implications which may arise in such arbitrations and examines how public‐private arbitration is treated under English law. We argue that, due to the lack of a developed administrative law sphere in England and the historical development of arbitration as an exclusively private mode of dispute resolution, the current legal framework of arbitration in England has developed around the private law paradigm of a commercial dispute involving private actors. This private law paradigm results in a conceptual and legal void in respect of how public interest is accounted for, and protected, in arbitrations involving public bodies under English law. Therefore, we suggest that English arbitration law needs to be amended to adequately protect the private interest in public‐private arbitration.

Summary Dismissal of ICSID Proceedings

In just 10 years since its inception, the new summary dismissal procedure under the ICSID regime has proven to be quite popular. Up until May 2016, 22 tribunals had already dealt with the new mechanism, with more than half of the proceedings instituted in the period between 2014 and 2016 alone. 2 Just like with transparency, 3 it seems that the summary dismissal procedure is becoming another procedural concept initially used by international courts and (investment) tribunals 4 with the potential to also influence the commercial arbitration world. 5 This merits a fresh look at the International Centre for Settlement of Investment Disputes (ICSID) summary dismissal procedure contained in Arbitration Rule 41(5), which however is best begun by briefly recalling the history of the rule. In October 2004, the ICSID Secretariat published a discussion paper on ‘Possible Improvements of the Framework for ICSID Arbitration’. 6 Under the heading ‘Preliminary Procedures’, the Secretariat suggested establishing a special procedure that allowed a tribunal to dismiss all or part of the claim at an early stage of the case on an expedited basis. 7 The suggestion was in part a reaction to the limited screening power of the Secretary-General of ICSID under Article 36(3) of the ICSID Convention. 8 Pursuant to Article 36(3), the Secretary-General of ICSID shall register a disputing party’s request for arbitration unless the Secretary-General finds on the basis of information contained in the request that the dispute is manifestly outside the jurisdiction of the Centre. However, the screening power of the Secretary-General does not extend to the merits of the dispute or to cases where jurisdiction is merely doubtful but not manifestly lacking. 9 As a consequence, the Secretary-General would have to register a request for arbitration even if he or she believed the claim to be unmeritorious or abusive. 10 The new procedure was intended to address concerns that the Secretary-General’s screening power was too limited, 11 and took into account complaints by some respondent governments that unmeritorious claims might only be fully addressed by a tribunal after spending considerable money and time on copious arbitral proceedings. 12

The Role of the Swiss Federal Tribunal and Its Impact on the Court of Arbitration for Sport (CAS)

The Court of Arbitration for Sport (CAS) is an arbitral institution with its seat in Lausanne, Switzerland. As such, it is subject to the more general legal framework of international arbitration in Switzerland regulated through the Swiss Private International Law Act (Swiss PILA). The Swiss PILA emphasizes the parties’ autonomy in the conduct of the arbitration proceedings and limits the intervention of state courts to the strict minimum. Within this context, arbitral awards are final upon their notification and can only be challenged before the Swiss Federal Tribunal (SFT) on a very limited number of grounds, exhaustively enumerated in Art. 190(2) PILA. Notwithstanding the “limited” role that the Swiss legislator reserves to the SFT, Switzerland’s Supreme Court has so far rendered numerous judgments in motions to set aside CAS awards. In this respect, the SFT plays a major role in the structure and development of CAS: first, the SFT controls both the legality of CAS as an arbitral institution and the legality of CAS awards as such; second, the SFT may confirm, reject or more generally interpret some of the procedural provisions of the CAS Rules and the law applicable to the merits. This working paper provides an overview of how the SFT judgments have two-fold impact on the functioning and development of CAS as an international arbitral tribunal.

A Comparative Study of Executive Guaranty of Arbitration at International Law (International Court of Arbitration and the New York Convention) and Iranian Law

The present study is an attempt to analyze the executive guaranty of arbitration at international law within internal Iranian law and the international law. The present research findings show that within internal law in case the arbitration verdict is not carried out voluntarily then its obligatory administration is under the support of law and has legal executive guaranty. But arbitration privilege at administration stage is not limited to the fact that any arbitration verdict is to be performed without any questioning but a significant aspect of this privilege is to prevent the administration of a verdict which is altered or creased and openly against the facts or the law. In international law the international commerce chamber arbitration system is the most important international trade arbitration system in contemporary period and has always been the influential forerunner in international arbitration and has had a significant role in the development and expansion of arbitration method of settling international trade disputes. Both the chamber arbitration rules and arbitration verdicts which are issued under the chamber arbitration framework are among the most important legal resources in terms of international arbitration and are considered as the constructive and formative factors of international arbitration procedure. It should be mentioned that commerce chamber arbitration organization lacks the executive tools to execute the arbitration verdicts. But in spite of that on the basis of arbitration rules article 35 the arbitration authority and the chamber arbitration court makes attempts to execute the verdict and the purpose is mostly the official measures rather than judicial or administrative. Principally, the execution of arbitration verdicts depend on state rules and regulations where from the identification and administration of verdict is requested.

The Australian Arbitration Framework

International commercial arbitration and domestic commercial arbitration are dispute resolution processes that take place outside of the courts, but which are still grounded in law. This paper analyses the legal framework for international and domestic arbitration in Australia, by reference to Australia's arbitration legislation, its institutions and their rules, and the role of the courts. As the process of arbitration is grounded in law, an understanding of this legal framework for arbitration in Australia is an essential first step in understanding how and why arbitration 'works' in Australia.

Comparative Analysis as an Autonomization Strategy in International Commercial Arbitration

The article explores the unique character of international commercial arbitration as a globalized phenomenon, where universalizing and harmonizing effects have largely been achieved by private means and spontaneous expansion, outside the States’ direct intervention and control. The evolution of arbitration in recent decades from an alternative to the core mechanism of deciding cross-border commercial controversies is considered. Privatization of this area of dispute resolution is examined in the context of its growing autonomization, marked — as observed by Emmanuel Gaillard — by notable changes in its theoretical representations and narratives.This specific conceptual, institutional, and procedural framework of commercial arbitration reflects the demands of decision-making exercised in a legally, linguistically, and culturally diversified environment. Interpretation and application of law in arbitral cases requires skillful navigation between the rules of domestic, international and transnational origin, performed not only on the level of substantive norms, but also on those involving conflict of laws and procedure. As a consequence, comparative analysis plays a critical and complex role in arbitral decision-making, reaching beyond the mere demands of rendition of relevant provisions, and has been defined sensu largo as a ‘comparative mindset’, characteristic to international commercial arbitration. The article examines this phenomenon and its mechanics, challenges for legal professions and the effect of transnationalization of relevant domestic rules. It also explains the role of comparative analysis as an important instrument, used strategically in the processes of autonomization of commercial arbitration.