International Arbitral Awards Research Articles

The Challenges of the New York Convention and Potential Solutions

This paper analyzes the current challenges of the New York Convention and proposes potential solutions through the actual situation and public reporting. Central to these challenges is the over-dependence on the judicial systems of the target countries, which often results in inconsistent and unreliable enforcement of international arbitration awards. This analysis identifies several key issues impacting the Convention's effectiveness: the conservative attitude of some countries in the enforcement of international arbitration, judicial corruption, the imperfection of the judicial system, and the different enforcement procedures under various judicial systems. To address these impediments, the paper explores innovative solutions inspired by successful practices from other international legal frameworks. Notably, it examines the streamlined processes of the Madrid Agreement Concerning the International Registration of Marks and various bilateral legal assistance agreements. These models provide valuable insights into simplifying procedural complexities and enhancing the uniformity of legal processes. By integrating these practices, the paper proposes actionable strategies to mitigate the current limitations of the New York Convention, aiming to bolster its role as a foundational instrument in the global arbitration landscape.

The International Arbitration Award as a Simple Proof Requirement in Bankruptcy

The International Arbitration Award as a Simple Proof Requirement in Bankruptcy

Юридическая хроника

In the September Chronicle, read comments on the criminal case of Pavel Durov in France, on the laws on amnesty for business crushing, on mining, on the introduction in the Criminal Procedure Code of an online form of meetings between a advocate and a prisoner, on changes in the foreclosure of a bankrupt’s only home, and on new approaches of the Supreme Court to the recognition and enforcement of international commercial arbitration awards.

How to assess the res judicata effects of international arbitral awards: giving concreteness to an autonomous approach

Abstract The article seeks to demonstrate the inadequacy of the ‘conflict-of-laws’ approach to determine the res judicata effects of international arbitral awards. Demystifying the erroneous assumption that the rules on the scope of res judicata are per se a matter of public policy, the authors defend an ‘autonomous’ approach, which dispenses with domestic law and confers broad preclusive effects on awards, with a view to avoiding the re-litigation of a dispute that is, in essence, the same as one already decided by a prior award. The legal bases for such an approach are party autonomy and the inherent powers of arbitrators. Building on the ILA Recommendations and recording the evolution of the conception of res judicata in certain civil law jurisdictions, the article proposes the elements of an arbitration-specific notion of the subject matter scope of the res judicata of awards with respect to issues of substantive law, addressing the situation of the res judicata of an award relied upon in further arbitral proceedings. The authors urge soft-law-making bodies and arbitral institutions to tackle arbitral res judicata proactively and contribute to the development of rules to give secure guidance to arbitrators and courts in determining its proper contours.

Implementation of International Arbitration Awards in Indonesia : Is it Final and Binding?

International Arbitration is one of the popular dispute resolutions used by disputing parties because it has several advantages such as confidentiality, fast decision-making and in principle is final and binding. However, in Indonesia, there are still other efforts that must be carried out before the award is executed or implemented so that international arbitration awards in Indonesia are not directly executed or implemented. Therefore, the objectives of this study are: 1), to know and analyse how the implementation of international arbitration awards in Indonesia; 2) to examine how the nature of international arbitration awards in Indonesia. This research was conducted using normative juridical research methods. The results of this study are First, the Implementation of International Arbitration Awards in Indonesia can be recognised and implemented if they are registered with the Registrar of the Central Jakarta District Court, and have fulfilled the requirements in Article 66 of Law No. 30 of 1999 concerning Arbitration and Alternative Dispute Resolution. Second, International Arbitration Awards in Indonesia are final because there is no appeal at the High Court level in any province in Indonesia, and cassation or review to the Supreme Court. International Arbitration Awards are binding or enforceable/executable as long as they do not conflict with the provisions of Indonesian national laws and regulations and fulfil the provisions and stages stipulated in Law No. 30 of 1999 concerning Arbitration and Alternative Dispute Resolution, hence international arbitration awards.

Implementation of International Arbitration Awards in Indonesia from the Perspective of Legal Value Theory

Establishing an arbitral institution aims to resolve business disputes swiftly and conclusively, with arbitration's finality and binding nature being key principles. However, Indonesian arbitration law requires exequatur from the Central Jakarta District Court to enforce an international arbitration award, leading to delays and complications. A notable instance involved the annulment of an international arbitration award due to ambiguous norms. This study employs a normative research methodology with a theoretical approach to highlight the misalignment between international arbitration awards in Indonesia and Gustav Radbruch's Theory. The findings indicate that the lack of a balanced approach to justice, conflicting norms resulting in legal uncertainty, and the failure to provide benefits to all parties contribute to this misalignment. According to Radbruch, law aims to achieve justice, legal certainty, and expediency, with clear and logical provisions necessary for legal certainty and laws serving the diverse interests of all parties for expediency. The issuance of the Republic of Indonesia Supreme Court Regulation No. 3 of 2023 represents an effort to improve Indonesia's arbitration law. Revising Indonesian arbitration law is essential to align it with Radbruch's Theory, ensuring justice, legal certainty, and expediency in international arbitration awards.

Alternative Dispute Settlement in International Law: Resolving Commercial Disputes through Arbitration

The increasing volume of international trade, coupled with the computer-nature of many of these relationships, has led to greater reliance on arbitration to resolve contractual disputes. This settlement of disputes by a non-judicial third party is increasingly called for, in international. Contracts because it is cheaper, quicker, and more private than resolving disputes through litigation. Equally important, however, is the fact that it can take place in a neutral location. The increase trade with countries such as China, Japan and Korea where mediation rather than litigation of disputes is traditional, has given added impetus to this trend. The growing attractiveness has resulted in the establishment of arbitration centers in world capitals such as London, Cairo, Hong Kong and Stockholm and major cities as Geneva and New York. Recognition and enforcement of international arbitration agreements and awards is generally controlled through multilateral treaties. An outgrowth of this trend has been the emergence of several major arbitral institutions that have conducted their own sets of rules and procedures. However, the parties to a contract are free to opt for a more informal or ad hoc arbitration arrangement based on their own set of guidelines. Such agreements are legally enforceable as long as the parties have agreed to abide by the arbitrator’s decision. In Cameroon however, since the passage of the OHADA Treaty was signed and ratified in 2000, it is applicable in the territory of Cameroon. This is the first treaty of its kind in Africa to deal with arbitration matters sometimes referred to as well.

Legal Certainty for the Execution of Arbitration Decisions on Marriage Agreement Disputes for Foreign Citizens In Indonesia

With this type of normative juridical research and using a statutory approach and a case approach by studying and analyzing all legal aspects, this research examines the legal certainty of the execution of Alaska state arbitration decisions regarding marriage agreements between foreign citizens who have assets in Indonesia. Arbitration is an alternative dispute resolution that is in great demand by many parties. However, in Indonesia itself the execution of international arbitration awards only revolves around trade disputes. On this basis, the international arbitration award regarding the marriage agreement dispute cannot be executed in Indonesia. Indonesia needs to make improvements to expand its authority so that international disputes do not only revolve around trade disputes, but also family disputes with the possibility of mixed marriages which then give rise to disputes such as property or custody as a result of mixed marriage divorce.

Арбитражный скандал, интрига и расследование: комментарий к решению Высокого суда Англии и Уэльса по делу P&I Developments Limited vs Republic of Nigeria

The English court’s decision, which was published last year on 23 October, is described not merely as precedential but as historic in its impact. This decision is impactful not merely because it released the Nigerian state (the respondent in the arbitral award that was set aside by the English court) from the burden of paying a lion’s share of its forex reserves to a little known offshore entity, but also because this is perhaps the first case where suspicions about abusive procedural tactics and corruption during the arbitral proceedings became a self-sufficient ground to set aside a similar international arbitral award. This article uses the almost detective story that unfolded in this case as an opportunity to address broader issues of public policy, legal ethics and corruption in major international cases, to challenge the traditional understanding of adversarial proceedings and to address other problems that directly implicate the future of arbitration as a means of resolving investment disputes. These issues are also quite relevant for Russia considering the impending legal outcome in the long-running Yukos arbitration.

RECOGNITION AND ENFORCEMENT OF INTERNATIONAL ARBITRATION AWARDS

This article will explore the legal framework, procedures, challenges, and trends related to the recognition and enforcement of international arbitration awards, shedding light on the significance of this process in promoting a harmonious and predictable international business environment.

Chronology of Practice: Chinese Practice in Private International Law in 2022

Abstract This survey contains materials reflecting the Chinese practice of private international law in 2022. Firstly, the changes in the statutory framework of private international law in China include two legislative acts and one administrative regulation. Moreover, three international treaties in this regard were ratified by the National People’s Congress. Secondly, three judicial interpretations of the Supreme People’s Court (“SPC”) were adopted or amended, and 56 typical cases in six judicial documents on different topics were issued by the SPC. Thirdly, four typical cases on Chinese courts’ jurisdiction; 14 cases on choice of laws on various issues such as foreign investment contracts and negative lists, rights in rem, life insurance contracts and mandatory rules; one case on international judicial assistance rendered to an Argentinean court; three cases on interim measures; three cases on the recognition and enforcement of foreign judgments; nine cases on international arbitration including international sports arbitration and foreign awards, are selected in this survey for their emerging significance. Fourthly, the provisions regarding the extraterritorial application of Chinese laws have been identified for the first time in this series of surveys, shedding light on this aspect of private international law in China. They include those contained in, inter alia, China’s Anti-Monopoly Law, Anti-foreign Sanctions Law, Export Control Law, Securities Law, the Rules on Counteracting Unjustified Extra-territorial Application of Foreign Legislation and Other Measures, as well as the Provisions on the Unreliable Entity List.

Mechanism of Cancelling International Arbitration Awards and Its Legal Consequences under Civil Law

Arbitration means appropriate conciliation proceedings or arrangements to resolve disputes with the aim of reaching a certain final and binding outcome. The arbitral award is considered permanent because it is final and binding without appeal or cassation. There are two types of arbitral awards, namely national and international arbitral awards. Arbitration is an attempt to reverse the contents of an arbitral award in whole or in part. On that basis, this study aims to explain the mechanism for the revocation of an arbitral award and its legal consequences based on civil law.

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.

The Urgency of the Principle of Public Policy as a Basis for Refusing the Execution of Commercial Arbitration Awards Submitted for Execution in Indonesia

Arbitration as a dispute resolution has been recognized and accommodated in Indonesian positive law. Against international arbitral awards that are requested for enforcement in Indonesia, there is an obstacle regarding the refusal of execution of the award based on the violation of the principle of public policy. The limitative definition in the 1958 New York Convention and no further regulation of the principle of public policy provide uncertainty to the execution of international arbitration awards in Indonesia. The type of research used in this legal writing is normative legal research. Research that is evaluative research. The approaches used include a statutory approach, case approach, and conceptual approach. The technique of collecting legal materials is done through literature study using deductive legal logic. The results show that although there is no unity of meaning regarding the principle of public policy, every country definitely needs an emergency brake to protect national interests called the term public policy.

Analyzing the Effects of Maker Spaces and 3D Printing Technology on Student Innovation and Design Thinking

Arbitration as a dispute resolution has been recognized and accommodated in Indonesian positive law. Against international arbitral awards that are requested for enforcement in Indonesia, there is an obstacle regarding the refusal of execution of the award based on the violation of the principle of public policy. The limitative definition in the 1958 New York Convention and no further regulation of the principle of public policy provide uncertainty to the execution of international arbitration awards in Indonesia. The type of research used in this legal writing is normative legal research. Research that is evaluative research. The approaches used include a statutory approach, case approach, and conceptual approach. The technique of collecting legal materials is done through literature study using deductive legal logic. The results show that although there is no unity of meaning regarding the principle of public policy, every country definitely needs an emergency brake to protect national interests called the term public policy.

Dispute Resolution in Business Sector: Comparing Indonesia and Singapore Arbitration Model

Dispute resolution within the business sector can be accomplished through either national arbitration institutions or international arbitration institutions. International arbitration serves as a process to settle civil disputes using a neutral third party, particularly in the context of business-related conflicts arising between parties engaged in international business agreements. Such arbitration is often specified through arbitration clauses included in these international business agreements, which are mutually agreed upon by the involved parties. One example of an international arbitration institution that specializes in resolving civil disputes, particularly those within the business sector, is the Singapore International Arbitration Center (SIAC) located in Singapore. The implementation of arbitration awards depends on the type of arbitration being conducted, whether it is a national arbitration award or an international arbitration award. During the preparation of this paper, the author utilized a normative-juridical research method, which involves relying on legal library sources and secondary legal materials to address existing legal issues. This paper aims to compare the legal foundations and the arbitration dispute resolution processes employed by the Indonesian National Arbitration Board (BANI) and the Singapore International Arbitration Center (SIAC). The research findings reveal that the legal basis for arbitration dispute resolution utilized by the Indonesian National Arbitration Board (BANI) differs from that employed by the Singapore International Arbitration Center (SIAC). Nevertheless, the processes and procedures for resolving arbitration disputes conducted by both institutions demonstrate notable similarities.

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.

Executorial principles in international arbitration awards in the Indonesian legal system

International arbitration awards in practice do not always run smoothly in carrying out their executions, so there is a need for affirmation of regulations both fundamentally or the principles and regulations. That is the background why this needs to be studied. So the legal issues in the research are: How is the power of the executive principle in international arbitration decisions in terms of the Regulation of the Supreme Court of the Republic of Indonesia Number 1 of 1999 concerning Procedures for Implementing Foreign Arbitration Awards? The problems that arise in carrying out the execution of foreign arbitration awards in Indonesia?. This study uses a normative juridical research method using a doctrinal legal approach, which analyzes laws and regulations, legal theories, doctrines, legal principles, which are analyzed in the form of descriptions. The results of the study show that: basically the legal force of an international arbitral award which is final, binding and legally binding remains the same as a court decision that has permanent legal force. What makes the difference is that an international arbitral award does not have executive power before the award is registered and requested for executorial fiat at the Central Jakarta District Court. The problem that often arises in Indonesia is the use of reasons for decisions that are contrary to public order (public policy) to refuse the execution of decisions. So that in such circumstances the international community sees it as a legal uncertainty.

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.

Peningkatan Kemahiran Advokat dalam Registrasi Putusan Arbitrase Asing di Indonesia

Indonesia is a country that has ratified the 1981 New York Convention through Presidential Decree Number 34 of 1981, so that foreign or international arbitral awards can be implemented in Indonesia after being registered by the arbitrator or his proxy at the Central Jakarta District Court. Advocates can be appointed as attorney for arbitrators to register international arbitral awards. However, currently there are still few Indonesian advocates who understand the registration and implementation of international arbitral awards in Indonesia. We organize national seminars on arbitration socialization or training, particularly on the registration of foreign arbitral awards. This socialization implementation was designed using a partner participation approach as socialization and training participants. After attending the outreach seminar, the advocates understood and mastered the process of registering international arbitral awards in Indonesia.