International Arbitration Centre Research Articles

THE COURT OF ASTANA INTERNATIONAL FINANCIAL CENTER AND PUBLIC-LEGAL REGULATION MATTERS

To attract foreign investors, around 50 agreements on the promotion and mutual protection of investments has been concluded by the Republic of Kazakhstan, where the parties undertake to create favorable conditions on their territory. By the Decree of the President of the Republic of Kazakhstan of May 19, 2015, the «Astana» International Financial Center was established in the city of Astana, which has been operating since 2016. One of the main tasks of the «Astana» International Financial Center is to attract investment in the sphere of financial services of our country. In addition, with the involvement of excellent judges, and recognized lawyers the «Astana» International Financial Center Court and the International Arbitration Center were established. However, the «Astana» International Financial Center Court does not conduct administrative or criminal proceedings. At the same time, this court has exclusive competence to interpret the acts of the «Astana» International Financial Center. In this connection the question arises about the expediency of consideration of disputes with the state bodies within the framework of the Code of the Republic of Kazakhstan «Administrative Procedural Code of the Republic of Kazakhstan», where the sources of the law of the «Astana» International Financial Center include principles, norms, and precedents of the English law. Are local administrative courts sufficiently qualified to adjudicate disputes under the common law? This article will examine the structure of the «Astana» International Financial Center Court, its jurisdiction, and public-law relations under the current law of the «Astana» International Financial Center, the legislation of the Republic of Kazakhstan.

Research on the Modernization of China Foreign Commercial Arbitration: From the Perspective of Building an International Commercial Arbitration Center

Under the background of social change and the great development of "Belt and Road" policy, China's international commercial arbitration is facing a higher level of development needs. In order to solve the existing problems, draw on the experience of the world's advanced international arbitration centers, improve the concept of arbitration, and improve the level of arbitration services, China should take the goal of building a China international commercial arbitration center comparable to the world-class level, and constantly explore the development path of arbitration. This paper analyzes the present situation and trend of international commercial arbitration in China, discusses the connotation and value of China international commercial arbitration center, put forward from government relations, institutional development, system architecture, modernization can assign four aspects to improve the arbitration center construction scheme, and innovatively put forward the horizontal and vertical two lines and special assigned to the development of the framework. Accordingly, China's international commercial arbitration system should be continuously improved, the credibility and discourse power of China's international commercial arbitration should be enhanced, and China should build an international arbitration brand with Chinese characteristics.

Международный коммерческий арбитраж: верификация теории делокализации в эпоху санкций

The article deals with theoretical approaches to determining the essence of international commercial arbitration through the study of the concept of delocalization. The purpose of the study is to substantiate the hypothesis that the principle of delocalization of arbitration operates even in the face of hostile sanctions restrictions, although it is influenced by the international agenda. The practical task is to analyze the rules of international arbitration centers organizing cross-border arbitration and identify the jurisdiction of an arbitration center that can optimally guarantee a fair and qualified consideration of a dispute with the participation of Russian entrepreneurs. The relevance of scientific research in the field of delocalization of international arbitration is due to their practical significance. As a result of the study, the conclusion is substantiated that in the current unfavorable conditions of political and legal instability, Russian entrepreneurs are recommended the jurisdiction of the Hong Kong International Arbitration Center (hereinafter — HKIAC).

Building a Global International Arbitration Centre of China: Independence, Internationalism, and Immunity

Building a Global International Arbitration Centre of China: Independence, Internationalism, and Immunity

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.

Решение международного коммерческого арбитража и основания для его отмены: сравнительно-правовой анализ регулирования в России и Сингапуре

The purpose of the article is to conduct a comparative analysis of the processes for issuing, amending and supplementing awards by institutional international commercial arbitrations in the Russian Federation and Singapore, as well as reviewing the legal regulation of the setting aside the arbitral awards and current trends in judicial practice in this area in these states. The mechanism of returning an arbitral award by state courts for consideration within the framework of arbitration is analyzed in the article. This paper examines the provisions of the national legislation of the Russian Federation and Singapore governing the issues of international commercial arbitration, as well as the regulations of institutional arbitration organizations represented by the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation and Singapore International Arbitration Center; analyzes the unified norms of international law, as well as the practice of state courts and international commercial arbitration centers of the Russian Federation and Singapore. The process of an arbitral award issuing in the institutional international arbitrations of the Russian Federation and Singapore has a number of features that may indirectly affect the outcome of the dispute. The legislation of Singapore also contains additional (compared to generally accepted) grounds for the setting aside an arbitral award — fraudulent or corrupt motives; violation of the fundamental principle of natural justice, while specific approaches to the essence of these grounds were developed by judicial practice. Of particular interest is the developed pro-arbitration active position of the state court of Singapore regarding the possibility of returning an arbitration dispute from the state court to arbitration, as well as the criteria for such return.

The Construction Law in the Middle East

This article analyzes the structuring of Construction Law in Middle Eastern countries. It is an excursus that deals specifically with what the Muqawala contract is, its usefulness and also its history, up to an indication of the most important issues and elements of construction contracts in Middle Eastern countries. Specifically, the most important and legally interesting case relating to the resolution of disputes related to incorrect contractual execution was also analysed. In addition, a further analysis was carried out on Arbitration as one of the most common instrument and also the most common form of dispute resolution in contracts involving international Parties and related to the same on a number of increasingly widespread and increasingly used local arbitration bodies including the Dubai International Arbitration Center and DIFC/LCIA Arbitration Centre.

Building a Global International Arbitration Center of China: Independence, Internationalism and Immunity

Building a Global International Arbitration Center of China: Independence, Internationalism and Immunity

Arbitraj kelishuvlari va yurisdiktsiya xalqaro tijorat arbitraji

The text provides a comprehensive analysis of the role and evolution of international commercial arbitration as a method of alternative dispute resolution. It emphasizes the growing preference for arbitration in international commerce due to its speed, confidentiality, and perceived fairness. The text also highlights the efforts made by the Republic of Uzbekistan to develop its arbitration infrastructure, including its adherence to international conventions and the establishment of the Tashkent International Arbitration Center. The article further delves into the legal intricacies of arbitration agreements, discussing their validity, enforceability, and the formal requirements they must meet. It concludes by noting the ongoing changes in international standards and laws governing arbitration, suggesting that these are in response to the changing needs of the global market

Analisis Hukum Pelaksanaan Penyelesaian Sengketa Bisnis Dengan Metode Arbitrase Online di Indonesia dan di Singapura

Online arbitration has been carried out by the Singapore International Arbitration Center (SIAC), then SIAC Rules, Arbitration Act of Singapore, and UNCITRAL as a legal basis SIAC already has rules regarding online arbitration. The Indonesian National Arbitration Board (BANI) has practically carried out online arbitration, but the BANI Arbitration Rules & Procedures and Law No.30 of 1999 as the legal basis for BANI do not have clear rules. This writing will discuss the comparison of online arbitration enforcement at SIAC with BANI, how SIAC regulates online arbitration execution and whether it can be adopted for online arbitration arrangements at BANI. This research was conducted using a normative juridical method. The approach used is legislation and comparison. The results of the comparative research on the implementation of online arbitration at SIAC and BANI show that SIAC already has rules that clearly regulate the implementation of online arbitration from arbitration registration, hearings, to online arbitration awards. In the implementation of online arbitration at BANI, BANI online arbitration registration is possible because it has the rules, but in the subsequent process of online examination hearings, and online arbitration awards do not yet have rules that regulate explicitly and clearly. Online arbitration arrangements at SIAC can be adopted into online arbitration procedure law by BANI and the Indonesian Arbitration Law because they do not conflict with other laws in Indonesia.

The evolution of summary procedure in investment arbitration: past, present and future

Abstract The last 15 years have witnessed a substantial rise of summary procedure to gradually become more and more significant in the world of investment arbitration since ICSID Arbitration Rules first introduced it in 2006. Before the emergence of this procedure that allows early dismissal of claims, various states have criticized the time and costs needed to defend their position in investment proceedings. Against this background, the birth of summary procedure aims to help parties to save time and costs and avoid unnecessary consumption of parties’ resources by disposing of manifestly frivolous and unmeritorious at an early stage of the proceedings. This feature has captured much attention since major arbitration institutions started to adopt it, with ICSID being the pioneer, followed by the Singapore International Arbitration Centre (SIAC) and the Arbitration Institute of the Stockholm Chamber of Commerce (SCC). Given its increasing importance in investment disputes, the ICSID has lately published a series of Working Papers which, among many other things, proposed to enhance the rule on ‘manifest lack of legal merit’. This article aims to look back on the evolution of summary procedure in investment arbitration for the last 15 years by examining its genesis and development, the current regime, and tribunals’ application of this procedure in practice, the future contemplated by the ICSID proposed amendments.

Advancing Thought-Leadership in Mediation: Highlights from the work of SIDRA

This chapter on mediation focuses on the work of the Singapore International Dispute Resolution Academy (SIDRA), a research centre at the Singapore Management University School of Law. It explores how SIDRA has created a platform for thought-leadership in international dispute resolution theory, practice and policy, and explains its three research programmes, namely, the International Dispute Resolution Survey Research Programme, the Singapore Convention on Mediation Research Programme and the Belt and Road Initiative Research Programme. The chapter also addresses how SIDRA’s three research areas complement one another as they explore the interlinks between international litigation, arbitration and mediation. For example, the International Dispute Resolution programme aims to fill a gap in the available data on user experiences of international dispute resolution with a view to informing policy and practice, with the key project being the SIDRA Survey on International Dispute Resolution (SIDRA Survey) commissioned by the Singapore Ministry of Law and administered with the support of PwC South East Asia Consulting. The chapter also explores how SIDRA is engaged in a number of collaborations that harness insights from the three programmes, such as through collaboration with the SMU Law Academy (SMULA) and the SMU Centre for AI and Data Governance. The chapter then outlines SIDRA’s networks to various stakeholders within and outside Singapore, including the Singapore International Commercial Court, the Singapore International Arbitration Centre, the Singapore International Mediation Centre, the Singapore Mediation Centre and the Singapore International Mediation Institute, and international organisations including the World Bank Group and national bodies such as the Vietnamese Judicial Academy.

The US-China Relationship in the 20s

Remarks prepared for panel discussion on US-China Relations: Challenges and Opportunities, organized by the Hong Kong International Arbitration Centre as part of the 2020 ADR in Asia Conference.

Shari’a Law and Its Impact on the Development of Muslim and Non-Muslim Business Relations in the United Arab Emirates

Abstract The United Arab Emirates (UAE) is situated near the Persian Gulf in the North Eastern part of the Arabian Peninsula. Established in 1971 by the late Sheikh Zayed Al Nahyan, the UAE forms a federation of seven Emirates consisting of Abu Dhabi, Dubai, Sharjah, Ajman, Umm Al-Quwain, Ras Al Khaimah (The Emirate of Ras Al Khaimah had officially joined the federation on the 11th of February 1972.), and Fujairah. Because of its diversity and cosmopolitan nature, the country has always been a crossroad and prime location for people and trade. As Islam and Islamic principles have influenced Gulf societies in the very core of its existence, the Islamic way of conduct in trade relations and dispute resolutions are an element of paramount significance. This Article explores the role of Shari’a Law and its impact on the economic development of Muslim and non-Muslim business relations in the UAE and in particular in the Emirate of Dubai. The law and development from an Islamic perspective introduces a new vision on the theories of law and development by addressing the influence of Shari’a Law in economic development. In international trade relations and dispute resolution mechanisms such as formal contract enforcements in the Dubai International Finance Centre (DIFC) and the Dubai International Arbitration Centre (DIAC) the plurality of laws leads to the adoption of Shari’a Law over the Civil and Common Law regimes.

SIAC’s Cross Institutional Consolidation - Complication or Solution?

The Singapore International Arbitration Centre (SIAC) proposal on cross institution consolidation officially presented on 19 December 2017 aims to eliminate borders between arbitral institutions and suggests comprehensive solutions to the problems arising out of related arbitrations. If the proposal is effectively implemented, it seeks to ensure transparency. However, there are certain challenges the proposal may face such as inclusion of the consolidation protocol in the arbitral rules, determination of which institutional rules to apply in the consolidation of arbitration. Few other difficulties such as new fees structure and different scheme of selecting arbitrators can bring forth uncertainties. These challenges would ultimately result in enforcement concerns. This paper therefore seeks to examine and analyse the pros and cons of the SIAC's proposal on cross institution consolidation. Also, if the proposal is a solution or complication to the problem of related arbitrations.

International Commercial Arbitration in India

The Indian arbitral regime has witnessed its share of ups and downs with the constantly over-looming air of criticism, scrutiny and widely expressed aversion towards the mechanism for resolving ICAs. In the past, there have innumerable circumstances when international parties have been victims of the excessive intervention of the court and the enormous delay in reaching a conclusive determination of their disputes through arbitration. Such arbitrations in the past were marred with the procedural and substantive lacunas present at every step on the way in the 1996 Act. Due to such experiences, the arbitral regime in India seemed more and more unattractive with most of such international commercial disputes being centered outside India only to avoid all the hurdles and barriers that 1996 presented. This can be corroborated from the Annual Report released by the Singapore International Arbitration Centre (hereinafter referred to as “SIAC”), which shows that the highest number of filings came from parties with Indian nationality with a total of 91 cases filed. This shows that India was not a preferred destination to carry out arbitration due to the shortcomings of the 1996 Act. In light of these prevailing facts and circumstances coupled with the new policy regime concentrating on foreign trade and investment, it became imperative that an amendment is brought about to cure all the deficiencies that were prevalent in the arbitral regime in India regulated by the 1996 Act. It was with this in light that several changes were introduced through the 2015 Act, which has changed the entire landscape of ICAs and its conduct under the Indian arbitral regime. This paper takes strides towards highlighting the amendments and their impact on ICA with seat in India. The amendments will be analyzed through an in-depth study into the legislative idea behind each of them along with their present-day scope and applicability. Since this paper will be delving into aspects of ICA with seat in India, it will be provisions of Part I of the 2015 Act that will be scrutinized.

A Research on the Discourse for Constitutional Acceptance of ADR - Focusing on Latin American legislation

오늘날 다양한 이익집단의 이해관계가 첨예하게 대립되는 이익사회의 심화로 법적 분쟁이 빈번히 발생하고 있다. 이러한 문제는 국내에 국한된 것은 아니며, 세계화로 인하여 국제분쟁도 빈번하게 발생하고 있는 것이 현실이다. 정식재판에 의한 분쟁해결은 그 절차가 복잡하고 종국적 해결까지 시일이 오래 걸리며, 소송비용과 관련한 경제적 부담 등의 문제가 있다. 법원을 통한 해결을 도모하는 것은 지식재산권 분쟁이나 스포츠 분야에서의 분쟁과 같이 그 사안이 복잡하고 그 분야에 대한 전문성을 요하는 경우에 실정법에 대한 유권적 해석을 전문으로 하는 법원을 통한 해결은 한계가 있다. 이러한 문제점을 해결하기 위하여 ADR이 활발하게 활용되고 있다. 국내 중재제도가 발달하고 이후 국제중재제도로 그 적용영역과 연구를 확장하는 일반적인 추세와 달리 우리나라는 수출 중심의 정책을 펼치면서 발생한 다양한 국제분쟁을 해결하는 과정에서 국제중재가 먼저 발달하고 국내에 영향을 미쳐 국내중재제도가 발전하는 양상을 보이고 있다. 우리나라의 경우 ADR을 헌법적으로 수용하고자 하는 노력을 보이고 있는 중남미 국가의 법제에 대하여 검토하고 헌법소송인 amparo소송의 남용으로 인하여 중재의 장점이라 할 수 있는 신속한 권리구제를 막고 국제중재와 관련한 중재결정의 미준수로 인한 국제적 신뢰상실 이라는 문제점이 발생하면서 중남미 각국에서 이에 대하여 제한을 하는 경향에 대하여 검토해 보고자 한다. 국제중재에 있어 중재결정에 대한 존중을 통하여 국제적 신뢰를 유지하고 런던국제중재법원(LCIA)과 같이 법원의 기능을 수행하는 기구를 적극적으로 활용함과 동시에 대한상사중재원의 국제중재센터의 위상제고와 함께 중재법원의 설립을 위한 제도적 마련이 요구된다. 우리나라의 ADR 적용에 있어 제공하는 시사점을 살펴보고 신속한 권리구제 방안의 도입을 위한 합리적 해결책을 모색해 보고자 한다.Today, legal disputes frequently occur due to the deepening of interest society where sharp interests of various interest groups are sharply opposed. This problem is not limited to Korea, and international disputes are frequently occurring due to globalization. Dispute resolution by formal trial is complicated in its process, takes a long time to finalize, and there are problems such as economic burden related to litigation costs. Promoting court resolution is limited by courts that specialize in constitutional interpretation of the law in cases where the issue is complex and requires expertise in the field, such as intellectual property disputes or disputes in the sports field. There is. In order to solve this problem, ADR is actively used. Review the Latin American legislative system that is making efforts to accept ADR constitutionally, and prevent abuse of the constitutional lawsuit amparo lawsuit to prevent prompt remedy, which is an advantage of arbitration, and to comply with the arbitration decision regarding international arbitration. As a result of the loss of international credibility, I would like to examine the tendency of countries in Latin America to limit it. In international arbitration, through respect for the arbitration decision, the international arbitration center of the Korean Commercial Arbitration Board will be strengthened, while the international trust center will be actively maintained and the institutional functions such as the LCIA will be used. In addition, institutional arrangements for the establishment of an arbitration court are required. This study examines the implications of Korea s ADR application and seeks a rational solution for the rapid introduction of rights remedies.

LEGAL STANDING STATE OWNED ENTERPRISES DALAM INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES (ICSID): IMPLEMENTASI BROCHES TEST DALAM BEIJING URBAN CONSTRUCTION GROUP, CO., LTD. V. REPUBLIC OF YEMEN (ICSID CASE NO. ARB/14/30)

The development of the world of arbitration as one of the ways to resolve non-litigation disputes today is quick as thought. The International Centre for Settlement of Investment Disputes (ICSID) is an international arbitration centre focus solely on the settlement of investment disputes between State and National of Another Contracting State. However, the rapid development of economic growth in foreign direct investment brought new legal jurisdiction to ICSID regarding Chinese State Owned Enterprises. For this purpose, a formula by Aron Broches was set as a test for any State Owned Enterprises that wishes to bring their case before ICSID Arbitration. The so called Broches Test is now in questioned, as to the peculiar case in BUCG v. Yemen, where the test itself is collided with the fact that more than 300 Chinese State Owned Enterprises is investing with commercial nature but bringing the China policy on Belt and Road Iniative.

Regionalism: Is it Essential to the Advancement of International Arbitration in ASEAN?

Over last two decades, we were witnessing the marked increase of trade and investment in Asia, especially intra-ASEAN and between China-ASEAN, inducing the establishment of many international arbitral institutions and promulgation of arbitration laws in the Member States. In which, Singapore International Arbitration Center has become the most preferred arbitration seat in the region. In despite of the fact that the establishment of a regional arbitration center, and the harmonization of mechanism of recognition and execution of foreign judgements and arbitral awards had been discussed, it is unlikely that both two subjects would be considered and realized in near future due to the state immunity and differences in politics and jurisdictions of the Member States. This paper shall investigate the necessity and alternative construction of the regionalism in international arbitration which may facilitate the commercial and investment disputes settlement in ASEAN by analyzing their current context and potential processes. This examination shall also reveal the impacts of the capital flows from China’s Belt and Road Initiative, European Union countries and the competition amongst the different other mechanisms of international disputes settlement on the advancement of the international arbitration in our region.

SIAC Proposal on Cross-Institution Consolidation Protocol: Can It Be Transplanted into Investment Arbitration?

Investment arbitration has been increasingly criticized as being, among other things, slow, cumbersome and unpredictable, in light of contradictory awards arising from similar factual situations. Recent renewable energy proceedings against Spain, Italy and the Czech Republic have prompted the author to revisit the idea of creating a consolidation facility in order to address some of these short-comings. Unlike earlier attempts, however, which focused on the possibility of consolidating disputes that are conducted under one set of procedural rules, the author, inspired by the recent Singapore International Arbitration Centre (SIAC) Proposal on Cross-Institution Consolidation Protocol, explores the possibility of consolidating disputes that are conducted under different rules. After analysing SIAC’s Proposal, the author assesses the need for a similar instrument in the realm of investment arbitration. The article subsequently discusses existing consolidation mechanisms of NAFTA, certain BITs and newer trade agreements (CETA, TTIP and the EU-Singapore Investment Protection Agreement). The author then considers different aspects of this new consolidation facility. The article concludes with a brief overview of potential hurdles that this consolidation facility might face on route to acceptance.