International Arbitral Awards Research Articles

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.

Annulment of an International Commercial Arbitration Award: The Ukrainian Experience

Background: The development of foreign economic relations between business entities is the key to a stable economy of each country as a whole. During the implementation of these relations, the emergence of disputes and the procedure for their resolution is one of the main prerequisites for giving preference to alternative dispute resolution, namely international commercial arbitration. Despite the existence of unified rules and standards for the recognition and enforcement of international commercial arbitration awards, which are enshrined in the New York Convention of 1958, many issues arise in the doctrine of international civil procedure and law enforcement practice. These issues are the result of an inconsistent approach to arbitration in the national legislation of the member states of the New York Convention of 1958. Methods: The article will consider the distinction in the definitive approach of ‘challenging’ and ‘annulment’ the decision of international commercial arbitration through the prism of comparative legal regulation and evaluation of the results of both the domestic doctrine of arbitration and foreign scientific schools. In addition, during the analysis of the numerical judicial practice of national courts, the problematic issues of the procedural procedure for annulment of decisions of international commercial arbitration and the grounds for their annulment are considered. Results and Conclusions: Among the results, some gaps and contradictions were discovered, in particular, the ideas of ‘challenging’ and ‘appealing’ such awards. These procedures differ in that within the framework of the procedure for challenging the decision of international commercial arbitration, and the state court has no right to review such a decision on the merits.

KETIDAKPASTIAN HUKUM DALAM PENYELESAIAN SENGKETA BISNIS INTERNASIONAL MELALUI ARBITRASE INTERNASIONAL DI INDONESIA

In business activities, one of the considerations for international business partners is the legal certainty of a country. This study aims to analyze the causes of legal uncertainty in settlement of international business disputes through international arbitration in Indonesia. This research is descriptive of the type of normative legal research. The data used to examine the issues under study include regulations related to legal certainty in settlement of disputes through international arbitration and secondary legal materials in the form of scientific works and the results of research by legal experts, especially those related to international arbitration. The approach used is a statutory approach, especially the AAPS Law. Data was collected through a literature study, then analyzed qualitatively. The findings of this study are that legal uncertainty in settlement of disputes through international arbitration occurs due to inconsistencies in implementing the provisions of the AAPS Law, particularly concerning the recognition and enforcement of international arbitral awards. In addition, there are no clear limits on violations of public order as a condition for international arbitral awards to be implemented in Indonesia

The Dilemma of International Arbitration Awards in Indonesia

The final and binding nature of international arbitral awards results in the nullification of the rights of the parties to file legal remedies against the arbitral award, as is the case with decisions of national courts that can be appealed, appealed, or reviewed. However, Article 68 paragraph (2) of Law Number 30 of 1999 concerning arbitration and Alternative Dispute Resolution provides an opportunity for parties who refuse to recognize and implement an international arbitral award that can be appealed to, as well as Article 70 must also be explained that Article this applies only to national arbitrations. This of course creates legal uncertainty, disuse, and injustice for the parties. Therefore, what is highlighted in this research is what is the position of the final and binding international arbitration award in Indonesia. The research method used in this article is legal research using primary and secondary legal materials. The results of the research show that the position of international arbitral awards in Indonesia is not the same as the decisions of national courts because they cannot be appealed, cassated, and reviewed. Therefore, it is necessary to completely amend international arbitration arrangements by removing Article 68 paragraph (2) of Law Number 30 of 1999 concerning Arbitration and Alternative Dispute Resolution in order to provide legal certainty, benefit, and justice for the parties.

The Principle of Equidistance on Continental Shelf Delimitation

In the field of the international law of the sea, continental shelf delimitation has always been one of the most controversial issues. Since the definition of the Equity Principle in the “United Nations Convention on the Law of the Sea” (UNCLOS) is relatively vague, the connotation of the Equity Principle depends on the accumulation and development of international judicial precedents, arbitration awards, and state practice. The Equity Principle of continental shelf delimitation has been generally recognized by the international community and has become a part of customary international law. Only when all relevant circumstances are fully considered can a fair delimitation result be obtained and a balance of reasonable interests of all parties be achieved.

A Theoretical Study on Nationality and Cancellation of International Commercial Arbitration Awards

The international commercial arbitration award refers to the award made by the arbitration tribunal in international commercial arbitration cases. The determination of the nationality of an arbitral award plays an important role in international commercial arbitration, and the determination of the nationality of an arbitral award also plays a decisive role in the implementation of international commercial arbitration awards. The determination of the nationality of an award in international commercial arbitration is usually based on the implementation region of the case. The court of the state with the nationality of the award can exercise the right to revoke and supervise the award results in commercial arbitration cases. The foreign country without the nationality of the award can only choose to recognize or refuse to implement the revocation and supervision. Once an arbitral award is revoked, the arbitral award will no longer be legally binding. And a foreign arbitral court that does not have the nationality of the award can refuse to recognize the enforcement of the arbitral award.

The Dispute Settlement through International Arbitration between PT. Karaha Bodas Company against PT. Pertamina and PLN

Arbitration is a dispute resolution institution that uses an adversarial approach with the result that win lose chosen as an alternative by business people. Alternative dispute resolution that is currently in demand is through arbitration because it is in line with the increase in commercial transactions in the business sector both nationally and internationally. Dispute resolution through arbitration provides benefits for the disputing parties. These advantages include the confidentiality of the disputing parties, relatively cheaper costs, a fast, efficient dispute resolution process and provide flexibility for the disputing parties. International arbitration dispute resolution has a uniqueness which adheres to the principle of final and binding (last resort and binding). An international arbitral award that has been decided abroad if it is brought to Indonesia, there are two possibilities, i.e. the International arbitral award asks to be enforced or annulled. Based on the dispute between PT. Pertamina against Karaha Bodas Company that Pertamina cannot cancel the arbitration award that has been handed down by the Swiss Arbitration Board. The reasons for rejection and cancellation are as stated in the New York Convention and the UNCITRAL Model Law.

Regulations Concerning International Arbitral Awards in Indonesia

One of the aims that underlies the establishment of the board of arbitration is to keep business dispute settlement efficient. The principle of resolving disputes through arbitration is final and binding, indicating that this decision can be directly enforced. The law concerning Arbitration in Indonesia asserts that an arbitral award can be taken further for an appeal to a District Court, or it can even be revoked. This is normative research with a theoretical approach. The research results conclude that international arbitral awards in Indonesia do not correspond to Gustav Radbruch’s theory because it fails to guarantee proportional justice for all interests and fails to ensure legal certainty due to conflicts of norms that may harm one of the parties. The clauses in the law governing arbitration in Indonesia need revising to fit Gustav Radbruch’s theory by removing articles that are not accordance with the principle of justice, certainty and expediency, should be a guarantee that arbitration international awards will be recognized dan implemented in Indonesia without any interference from Indonesia courts. Keywords: reward, justice, legal certainty, utility

Использование арбитража как средства разрешения международных споров

The article analyses arbitration as a means of resolving international disputes. The author states that the development of arbitration in the world created strong international and regional arbitral institutions that allow parties to choose a forum according to their needs and resolve disputes in the way, which suits them more. In conclusion, the author comes to the opinion that nation-states must further remove obstacles to international arbitration by, inter alia, joining various international treaties and ensuring that effective mechanisms exist to enforce international arbitral awards to improve the investment climate.

The Settlement of Mining Disputes and The Implementation of International Arbitration Awards

Article 154 of the Law of the Republic of Indonesia Number 4 of 2009 concerning Mineral and Coal Mining has regulated dispute resolution through domestic courts and arbitration. In fact, the dispute resolution such as the divestment cases of PT Newmont Nusa Tenggara and PT Kaltim Prima Coal was settled at the International Arbitration Institute. Furthermore, the resolution of the dispute over the divestment of mineral and coal mining shares against PT Newmont Nusa Tenggara and PT Kaltim Prima Coal through the International Arbitration Institute was accepted and some were rejected. The purpose of this research is to find the settlement of mineral and coal mining disputes and the implementation of international arbitration decisions. The results of the study show that in addition to resolving mineral and coal mining disputes, contracts made by mining business actors with the Government of Indonesia, both Contracts of Work and Coal Mining Concession Work Agreements, dispute resolution is carried out through International Arbitration institutions besides being regulated through courts and domestic arbitration. The implementation of international arbitral awards according to Indonesian law must meet several conditions, one of which is that the decision is handed down by an arbitrator or arbitral tribunal in a country with the Indonesian state bound by agreements, both bilaterally and multilaterally. Regarding the recognition and implementation of international arbitration awards, if the starting point is Article 3 in the New York Convention, a request for recognition and execution from one of the participating countries to a participant in another country must be executed, but Article 5 of the New York Convention provides the possibility for a participating country to refuse it.