International Arbitration Agreements Research Articles

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.

International Arbitration Agreements in Canada Post-Uber

In Uber v. Heller – a case involving an employment class action subject to an international arbitration agreement – the Supreme Court of Canada decided three issues that threatened to undermine the enforceability of international arbitration agreements in Canada. The Court: (1) read the scope of the Canadian International Commercial Arbitration Acts narrowly; (2) created an exception to the competence-competence principle; and (3) relaxed the test for invalidating arbitration agreements on unconscionability grounds. At the same time, Uber was decided in a highly specific factual context and its ultimate impact on the enforcement of international arbitration agreements was largely left to be determined by lower courts in future cases. This article examines two such cases involving consumer class actions subject to international arbitration agreements. The article analyses the courts’ application of Uber and its effect on their reasoning and on the outcome of these cases. While it is difficult to predict how Uber will unfold in the lower courts over time, the two cases examined in this article suggest that Uber is unlikely to affect the enforcement of most international arbitration agreements in the context of consumer class actions – perhaps the context most akin to that of Uber – let alone in more traditional commercial contexts. Canada, international arbitration agreements, commercial, Uber v. Heller, employment, consumer, class action, enforcement

Neither express nor implied: rethinking governing law of the arbitration agreement

ABSTRACT What law governs the arbitration agreement is a dividing issue in international arbitration. This Article critically examines three prevailing approaches from both an empirical and theoretical perspective. Using arbitral institutions’ statistics, the Singapore Academy of Law’s survey, and public filings of the U.S. Securities and Exchange Commission, it evaluates whether the prevailing approaches are consistent with commercial practices of drafting international arbitration agreements. The Article concludes that treating law of the seat as the default governing law of the arbitration agreement, in the absence of an express choice of law for the arbitration agreement, is the most ideal approach.

Choosing Spanish arbitration law to apply the group of companies doctrine

Abstract This note revisits the status of the Group of Companies doctrine’s application under Spanish arbitration law. It starts with analysing the judgments in ThyssenKrupp AG et al. v Ros Casares Group to develop further questions yet left unresolved. Particularly, what is the scope of extending the effects of an international arbitration agreement and what is the state of party autonomy in regulating the application of the GoC-doctrine, for example, by expressly choosing the applicable law thereto. The latter will determine both the legal standard required to establish implied consent as well as the margin of discretion of decision-makers.

Chronology of Practice: Chinese Practice in Private International Law in 2021

Abstract This survey contains materials reflecting the Chinese practice in private law in 2021. Firstly, regarding changes in the statutory framework of private international law in China, six legislative acts, one administrative regulation on Counteracting Unjustified Extra-Territorial Application of Foreign Legislation and Other Measures, and six judicial interpretations of the Supreme People’s Court (“SPC”) were adopted or amended in 2021, covering a wide range of matters, including punitive damages, online litigation, online mediation, and international civil procedure. Secondly, five typical cases on Chinese courts’ jurisdiction are selected to highlight the development of Chinese judicial practice in respect of consumer contracts, abuse of dominant market position, repeated actions and other matters. Thirdly, this survey considers 18 cases on choice-of-law issues relating, in particular, to capacities of legal persons, proprietary rights, employee contracts, mandatory rules, gambling and public policy. Fourthly, two significant decisions on punitive damages of intellectual property are reported. Fifthly, several key decisions in the recognition and enforcement of foreign judgments, international arbitration agreements and foreign settlement agreements, are reproduced. Lastly, this survey also covers the Summaries of the National Symposium on Foreign-related Commercial and Maritime Trials of Courts published by the SPC, an official document which represents the current judicial practices in the Chinese courts, and which is expected to provide guidance in the adjudication of foreign-related matters in the future.

Hakamlik bitimiga nisbatan qo'llaniladigan qonun

The article delves into the complexities of determining the applicable law in international arbitration agreements. It discusses the growing role of arbitration in international trade and highlights the challenges of identifying governing laws, especially when parties have not specified them. The article also explores common law and civil law approaches to this issue and mentions Uzbekistan’s recent legislative efforts to become an arbitration-friendly jurisdiction. The text is particularly relevant for legal professionals and scholars interested in international arbitration and its evolving legal frameworks

Challenges of Nigeria as a Preferable Seat of International Commercial Arbitration

Arbitration has over the years gained prominence as a preferred method for dispute resolution especially for cross-border commercial disputes. One of the reasons is that the parties want to resolve their dispute in privacy and obtain an enforceable award as soon as possible. The choice of the arbitral seat during the negotiation of any international commercial arbitration agreement is perhaps one of the most overlooked influential aspects over the course of the arbitral procedures. The importance of a wise choice of an arbitral seat generally has two aspects, one of logistical convenience and the other is of a legal effect. For reason of the crucial legal effects of the place of arbitration, the parties have to be sure that they have chosen the best suitable jurisdiction as the seat of arbitration. The article will further analyse the concept of the seat of arbitration, its role, and importance in international commercial arbitration. It will also examine by reviewing the drawbacks of Nigeria as a preferred seat of international arbitration, particularly on the arbitration legislation and the respective judicial supervision and support in effectively conducting arbitration within the jurisdiction.

Notes: To stay or not to stay? Admiralty proceedings after the International Arbitration Act 15 of 2017: Atakas Ticaret Ve Nakliyat AS v Glencore International AG

The decision in Atakas Ticaret Ve Nakliyat AS v Glencore International AG 2019 (5) SA 379 (SCA) made important remarks to the effect that the discretion to effect a joinder to admiralty proceedings under s 5(1) of the Admiralty Jurisdiction Regulation Act 105 of 1983, and the discretion to refuse a stay of proceedings under s 7(1)(b) of the Act, are ‘untouched’ by art 8 of the UNCITRAL Model Law on International Arbitration that is incorporated under the International Arbitration Act 15 of 2017. The court reached this decision on the basis that, in terms of art 1(5), the Model Law does not affect other laws of the Republic under which matters may not be referred to arbitration, or may only be so referred subject to conditions. This case note analyses the nature and extent of the court’s discretion under art 8(1) of the Model Law, the argument for an implied repeal of s 7(1)(b) of the Admiralty Jurisdiction Regulation Act, the interpretation of art 1(5) of the Model Law, and the questions left unanswered by the judgment. It argues that although the Model Law does not automatically oust the jurisdiction of the high court exercising admiralty jurisdiction to hear a maritime claim, the court only retains a narrow discretion to refuse a stay of those proceedings when an international commercial arbitration agreement exists in respect of the dispute.

GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC (U.S. Sup. Ct.)

On June 1, 2020, the U.S. Supreme Court decided GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC. The decision is significant for its holding that nothing in the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the Convention or the New York Convention) or the Federal Arbitration Act (the FAA) prohibits courts from deciding that non-signatories may be bound by or enforce international arbitration agreements based on contract, agency, equity, or related principles.

La suspensión de los efectos del convenio arbitral internacional en el marco de la insolvencia transfronteriza. Una realidad y un conflicto cada vez más frecuente

Este estudio analiza los puntos de fricción que se producen cuando interactúa un con­venio arbitral internacional y un concurso de acreedores al albor de una sentencia dictada recientemente por el Juzgado de lo Mercantil de Santander en incidente concursal y que acuerda la suspensión de los efectos de la referida cláusula arbitral. Se hace un recorrido analítico en busca de la norma de conflicto y selección de ley aplicable para recalar en el análisis del artículo 52 .1 de la LC, con una visión crítica de la suspensión judicial acordada, de las posibilidades de nulidad de la cláusula compromisoria y la va­loración del perjuicio para el concurso. Finalizamos con la problemática de los efectos extraterritoriales de la sentencia judicial.

International commercial arbitration in Canada after Uber Technologies Inc v Heller

Abstract This article examines the Supreme Court of Canada’s judgment in Uber Technologies Inc v Heller from an international commercial arbitration perspective, focusing on two specific issues. The first issue is the Court’s application of a provincial domestic, rather than international, arbitration statute to Uber and Heller’s international arbitration agreement, on the ground that the agreement is not ‘commercial’. The article argues that this finding is not in line with international arbitration instruments and practice. The second issue is the Court’s interpretation and application of the competence–competence principle, which permits arbitral tribunals to decide their own jurisdiction. The article maintains that the Court’s approach does not offend this principle, but that the Court provides insufficient guidance to lower Canadian courts on how to implement this approach in future cases. The article concludes that the Court’s decision, while far-reaching in many respects, should not disturb the enforcement of routine international commercial arbitration agreements in Canada. The decision may have implications, however, for arbitration agreements contained in international contracts—particularly standard form contracts—that might give rise to employment disputes, such as those in the gig economy, or that contain terms that may seem to bar a party’s access to the arbitral process.

The distinctive status of international arbitration agreements in English private international law?

Abstract This Case Note critically discusses the Court of Appeal’s recent decision in Enka v Chubb [2020] EWCA Civ 574, where it held that (i) the doctrine of forum non conveniens (FNC) can never apply where an English court is asked to determine if a London arbitration agreement should be enforced by injunction, and that (ii) the ‘separability’ of an arbitration clause from the contract containing it entailed that, absent an express choice of law for it, there was a ‘strong presumption’ that the parties implicitly chose the seat law as its proper law. In doing so, the Court abandoned its previous approach in Sulamérica v Enesa, and indirectly cast doubt on its recent suggestion in Kabab-ji v KFG that ‘implied choices’ of law arguably involved the implication of a term into the arbitration agreement on ‘business efficacy’ grounds. Further, the Court appeared not to acknowledge that, outwith the arbitration context, (i) ‘FNC waiver’ clauses and exclusive jurisdiction agreements do not categorically foreclose FNC, and that (ii) ‘implied choices’ of law should not be casually inferred nowadays. The Court’s analysis in Enka was distinctly arbitration-centric: it was minded to emphasize the non-derogability of the seat courts’ supervisory role, and the ‘separability’ of an arbitration agreement from the contractual document containing it. Enka is an intriguing example of how international arbitration doctrine, particularly as regards arbitration agreements, can materially diverge from cognate principles of private international law. Nevertheless, we question whether international arbitration agreements are truly distinctive enough to justify such differences in treatment. Our assessment is that the answer is probably ‘no’.

International Commercial Arbitration In Canada After Uber Technologies Inc. v. Heller

This article examines the Supreme Court of Canada’s judgment in Uber Technologies Inc. v. Heller from an international commercial arbitration perspective, focusing on two specific issues. The first issue is the Court’s application of a provincial domestic, rather than international, arbitration statute to Uber and Heller’s international arbitration agreement, on the ground that the agreement is not “commercial”. The article argues that this finding is not in line with international arbitration instruments and practice. The second issue is the Court’s interpretation and application of the competence-competence principle, which permits arbitral tribunals to decide their own jurisdiction. The article maintains that the Court’s approach does not offend this principle, but that the Court provides insufficient guidance to lower Canadian courts on how to implement this approach in future cases. The article concludes that the Court’s decision, while far-reaching in many respects, should not disturb the enforcement of routine international commercial arbitration agreements in Canada. The decision may have implications, however, for arbitration agreements contained in international contracts – particularly standard form contracts – that might give rise to employment disputes, such as those in the gig economy, or that contain terms that may seem to bar a party’s access to the arbitral process.

Reconciling the Conflict between International Investment Arbitration and Protection of Human Rights: Way Out

Human rights matters are increasingly becoming interwoven with Arbitration. The fact that, so far, international human rights norms are, as a matter of international law, not directly applicable on a horizontal level -- that is, in the relation between foreign investors and other private parties -- makes it not straightforward to bring claims based on the breach by the foreign investor of human rights obligations before a treaty-based arbitral tribunal. Instead, such obligations exist mainly on the domestic legal level. Also, traditionally, international investment treaties are silent on issues of human rights. Although states have recently effectively included references to human rights norms in their bilateral investment treaties (BITs) and other multilateral treaties (MITs), such as the recently negotiated Draft Pan-African Investment Code (PAIC), the vast majority of contemporary BITs do not mention human rights. There is a global increase in the use of International arbitration as a dispute resolution mechanism especially in international investment disputes and the debates on: (I) obligations of foreign investors to respect human rights of host states, and (II) whether the state can sufficiently maintain policy space alongside Investment treaty obligations with International Investors and the feasibility of enforceability of an award arising from investor-state dispute. The overlap between arbitration and human right matters in Investment arbitration brings to fore the inseparability of these two seemingly distinct areas. The nagging question has been the impact of Investment treaties on the ability of the state to enforce policies which safeguard human rights and the extent of the jurisdiction of an arbitral tribunal in Human right matters arising from International Investment agreements. This is essential because most international arbitration agreements are based on Bilateral or Multilateral investment treaties. The relationship between human rights and international investment law manifests itself in different contexts and directions. Two general and broad approaches concerning human rights law exist from the perspective of investment protection: human rights can be used to support or enlarge claims of investors or they can be used to strengthen the state’s defence of its actions which are taken to respect, protect and fulfil human rights. Similarly, investment law can be viewed in two different ways from the perspective of human rights: it can be seen as creating restrictions on the state’s ability to respect, protect and fulfil the rights of occupants of the state; it may also be perceived as a breach of individual rights of investors under international investment law. This work will discuss the application of arbitration in International Investment disputes, in particular relation to emergence of Human right matters in arbitration of Investor-state disputes. It will consider the circumstances under which human rights concerns can be raised before an arbitral tribunal set up under a BIT, when and how this can be done, the limited jurisdiction of tribunals over human rights matters, and the challenge of finding a balance where there is an overlap between Human rights and arbitration.

Damages for breach of an international arbitration agreement under English arbitration law

This essay brings to light—and expands upon—some of Mustill and Boyd’s observations on the remedy of damages for court proceedings wrongly brought. It provides a concise chronological account of the English courts’ power to grant such a remedy, especially, in relation to the infringement of the right to avoid those court proceedings. It also surveys a part of the English arbitration literature as well as various judicial authorities bearing on the subject both before and after the Arbitration Act 1996 came into force. After drawing a distinction between damages for improper initiation of national court proceedings in breach of an arbitration agreement governed by a foreign law and damages for improper initiation of foreign court proceedings in breach of an arbitration agreement governed by English law, the author argues (inter alia) that, as far as English law is concerned, the party against whom court proceedings have been initiated in contravention of an international contract to arbitrate has a common law right to claim compensatory damages in respect of the loss occasioned by the breach. He also argues for the compatibility of this remedy with European Union law and looks at the different fora in which a damages claim can be entertained.

The New York Convention: A Self-Executing Treaty

The thesis of this Article is that uncertainty regarding the Convention’s status as a self-executing treaty of the United States is unwarranted and unfortunate. Instead, both the Convention’s provisions for recognition and enforcement of arbitration agreements (in Article II) and of arbitral awards (in Articles III, IV, V, and VI) should be regarded as self-executing and directly applicable in U.S. (and other national) courts. As discussed in detail below, this is because Article II establishes mandatory, complete, and comprehensive substantive rules, directed specifically to national courts, for the recognition and enforcement of international arbitration agreements. Likewise, the history and purposes of the Convention, the language and legislative history of Chapter 2 of the Federal Arbitration Act (the “FAA” or “Act”), and the practices of other Contracting States support the conclusion that Article II is directly applicable in American courts.

Techniques and Tradeoffs for Incorporating Cost- and Time-Saving Measures into International Arbitration Agreements

Empirical research reveals that users of international arbitration view undue time and cost as international arbitration’s worst attributes. This article offers some potential solutions to combat this increasing dissatisfaction, focusing on a prophylactic approach in which parties are encouraged to negotiate and incorporate cost- and time-saving measures directly into the arbitration clause of their underlying contract. In the early stages of a commercial relationship, parties operate behind a ‘veil of ignorance’, a concept derived from modern social philosophy in which members of a nascent society are prevented from knowing what position they will occupy in that society. Without the knowledge of how the future society’s rules and policies might affect them personally, each participant will be naturally inclined to promote, agree to, and implement rules and policies that are fair and advantageous to all. Likewise, if parties to a nascent commercial relationship address cost- and time-saving techniques during the earliest stages of that relationship, they will be incentivized to agree to a dispute resolution framework that reduces time and costs more effectively than if they sought to implement those measures after a dispute has arisen. This article discusses several suggested measures designed to increase the economy and efficiency of international arbitration, along with a discussion of the respective tradeoffs and practical limitations of including those measures in the parties’ arbitration agreement.

Close Relations between Arbitration and State Court in each Procedural Stage-With an Emphasis on International Arbitration Agreement-

Close Relations between Arbitration and State Court in each Procedural Stage-With an Emphasis on International Arbitration Agreement-

International Arbitration Agreements and Their Adjustment Clauses: Are They In A State Of Evolution?

This article examines the principal means of the dispute resolution mechanism which deals with the International Arbitration Agreements. It is focuses, on the drafting of arbitration agreements and their adjustment clauses. This agreements are usually subject of the parties' drafting skills, negotiations, and interests. Given the situation, almost all international arbitrations arise pursuant to these agreements clauses, which, typically, are concluded well before any dispute arises. However, the international arbitration agreements embrace a very short, a very long, or somewhere in between clauses. Yet, the arbitration agreements in multi-party or in long-term complex businesses transactions are almost always subject to many factors - occurrence or relevance of which was not envisioned at the time the agreement was formed. Is there a perfect clause designed to fit all circumstances and accepted by all parties? What approach serves best the interest of the parties? The article challenges an obscure attitude that parties should negotiate adjustment, hardship or force majeure clauses more often in their original agreements, regardless of the belief that the project is a success and they do not wish to include conditions to avoid unforeseen inconsistencies, conflicts, or similar problems. Moreover, the complex language of these clauses and the long-lasting negotiations makes it even more difficult to convince the parties of the utility and the economic implications of these clauses. Finally, it sets out a suggested approach for determining the most common adjustment agreement clause in any given case.

Oh, Won't You Stay with Me?: Determining Whether 3 of the FAA Requires a Stay in Light of Katz

The Federal Arbitration Act (FAA) provides the legal framework to render international and interstate arbitration agreements judicially enforceable in the United States. In furtherance of that goal, it provides that if a party initiates litigation rather than arbitration of an arbitrable dispute, either party may request that the court stay the litigation pending arbitration. There is currently a split among the circuit courts in this country as to whether § 3 of the FAA requires a court under these circumstances to stay the suit or whether it has the discretion to dismiss the suit altogether.In Katz v. Cellco Partnership, the United States Court of Appeals for the Second Circuit, a leading U.S. court in creating and shaping domestic and international arbitration law, recently sided with the majority of sister circuits in holding that § 3 requires a court to stay the litigation pending arbitration. This Note argues that the proper interpretation of FAA § 3 does indeed require a stay and proposes that the Supreme Court adopt the Second Circuit’s reasoning. Further, it argues that the mandatory-stay approach is consistent with the plain meaning of the statute, as well as important policy objectives: (1) providing the pro-arbitration framework Congress intended when passing the FAA, as the Supreme Court has repeatedly underscored; (2) foreclosing interlocutory appeals of dismissals that stall arbitrations; (3) rejecting docket management as a grounds for dismissal; and (4) avoiding the general uncertainty and unpredictability of dismissals.