International Arbitration Court Research Articles

On the individual properties of the accessory nature of the arbitration clause

The regulation of the application of an arbitration clause as a type of arbitration agreement is based on the dual nature of this legal category, which determines the specifics of the relationship between material and procedural legal relations when the latter arises within the parameters established by the arbitration clause. In such cases, a significant simplification of legal regulation is not excluded, when it is possible to recognize signs of accessory in such relationships. According to the results of the study, the author proves that the interrelationships of material and procedural legal relations arising from the application of the arbitration clause have accessory characteristics according to eight criteria usually highlighted in the literature. It is proposed not only to establish such an approach to defining the features of accessory in this particular case in the doctrine, but also to improve the current legislation and practice of its application. In the work, the practical consequences of the author's conclusions are shown by the example of simplifying the procedure for verifying the possibility of applying for enforcement of decisions on interim measures taken by a court of another jurisdiction (international arbitration court) under an agreement containing an appropriate arbitration clause, "recognized" by national jurisdiction, where enforcement of a decision on interim measures is assumed. The work is based on the application of a whole range of general and private scientific research methods and techniques, the main of which were the method of system analysis and the method of formal logic in the form of deduction and induction. Accessory relationships remain a little-studied legal phenomenon, both in the theory of law and in branches of legal science. The most in-depth and consistent studies of this issue are present in substantive law, where they relate mainly to the problems of establishing the presence or absence of an accessory relationship between contractual obligations and ways to ensure the fulfillment of obligations. In procedural law, accessory as an independent legal category is not studied, although certain institutions of procedural law, for example, interim measures in civil proceedings, clearly have separate signs of accessory in their regulation. It seems that the establishment of the properties of accessory in the relationship between substantive and procedural legal relations, when the parameters of the latter are determined by an arbitration clause, will have important theoretical and practical significance.

The legal construction for the International Chamber of Commerce arbitration in resolving corporate conflict

The International Chamber of Commerce (ICC) is a private international non-governmental organization that provides its services to the international trade sectors (Wetter, 1985). Further, the ICC supervises its arm known as the International Court of Arbitration, which is an independent arbitral institution, affiliated with the ICC, which administers arbitration proceedings following the arbitration rules of the ICC but without adjudication of disputes as the adjudication of disputes is the jurisdiction of the arbitral tribunal. Yet, we have two problematic issues that the research treats: the confusion in the nomenclature and competencies between the components and units of the ICC during its practice of arbitration to settle corporate conflicts; while the second issue is that the basic elements of the arbitration process at the ICC based on its arbitration rules is not clear. Hence, the research approached these two issues in a direct presentation of the reality of arbitration at the ICC. The research emphasized the new modifications of the ICC arbitration system that resolve both above problematic issues.

A Triumph for the Indus Water Treaty: Transboundary Dispute Resolution in 1960

During the partition of India and Pakistan in 1947, at the time of independence from Britain, the borders were drawn with little consideration to water resources. After nine years of negotiations, the Indus Water Treaty was finally signed on September 19, 1960, with the cooperation of the World Bank. This article presents important conflicts between India and Pakistan on sharing Indus water including, Wullar barrage, Baglihar dam and Kishenganga projects and their successful resolution. The treaty has withstood the test of time and has been successful in maintaining peace on sharing of Indus water between not so friendly nations India and Pakistan. The disagreement has been successfully contained by the Treaty’s built-in mechanisms for conflict settlement at several levels, including the Permanent Indus Commissioner, Joint Secretaries, neutral expert, International Court of Arbitration, and UN.

The Political Economy of the Philippines and Its Development Strategy under China-USA Power Rivalry and Hegemonic Competition: Hedge with Balance

The competition between the United States and China has intensified since the Trump administration, and the two sides have clashed in the areas such as the economy, military, politics, technology, and human rights. This conflict presents countries in the Indo-Pacific region with the challenge of navigating foreign policy with these two hegemonic powers. The Philippines is one such country facing the challenge of maintaining a balanced relationship with the two countries as a major concern for a strategic triangle. The incumbent Philippine president must calculate the benefits and risks before formulating policies. Facing such a dilemma, former President Aquino chose to file a lawsuit with the International Arbitration Court and strengthen cooperation with the United States to defend the sovereignty of the Philippines in the SCS, whereas former President Duterte chose to shelve the sovereignty of the SCS and to cooperate with China under the framework of the BRI. However, President Duterte quickly changed his anti-United States stance in the climate of the ongoing conflict between the Philippines and China over islands and reefs in the SCS and then cooperated with the United States to reinstate the military cooperation agreement that he had suspended. Current President Marcos Jr. has adopted a more subtle approach. He declared that he would maintain economic cooperation with China and, at the same time, would strengthen bilateral cooperation with the United States, thereby attempting to maintain a balanced relationship with the two countries. In sum, the Philippines has adopted a dynamic balancing strategy to defend its national interests in the face of the strategic competition between the United States and China in the Indo-Pacific region.

Vietnam and Philippines’ Hedging against China in the South China Sea: Economic and Security Perspectives

This article is based on the argument that despite competing for territorial claims and different military stands off, the competing states have shown considerable restraint and hedging behaviors against each other’s to not make the politics of the South China Sea on a point of no return. This assumption is correct in a way that on economic forums like Association of Southeast Asian Nations (ASEAN), they have shown their consensus to resolve their disputes peacefully. But it seems wrong on the pretext that then why this economic interdependence has not provided the space to resolve their perennial territorial disputes in the South China Sea. To find out which assumption seems true, this article is based on the theoretical framework of the Strategic Hedging perspective. This study tries to find the answer to the research question of despite close economic interdependence and military stands offs, why regional states have failed to resolve the SCS dispute? China, the regional hegemon, claims the South China Sea (SCS) region as its core interest and provides the basis for its claims based on historical usage and part of the ancient Chinese dynasties. Vietnam has also shown inflexibility in its claim in the region overlapping with China and other competing states. Honai has also invoked international law to stop the Chinese territorial assertiveness in the region. The Philippines, one of the three important claimants of the SCS, has also tried to take help of the international court of arbitration and the support of global hegemon the US to extend its sovereignty in the disputed islands of the SCS. This article concludes with the findings that Vietnam and the Philippines are using constrain cum hedging to save their national interests from Beijing. Keywords: Politics, Hedging, South China Sea, Economy, Security, Spratly, Paracel

Spriječiti povratak: Provođenje Aneksa VII Dejtonskog sporazuma za mir u Bosni i Hercegovini (1995-2020)

Spriječiti povratak: Provođenje Aneksa VII Dejtonskog sporazuma za mir u Bosni i Hercegovini (1995-2020)

СИСТЕМА КОРПОРАТИВНОГО УПРАВЛІННЯ РОЗВИТКОМ ІНФРАСТРУКТУРНО-СЕРВІСНИХ ПІДПРИЄМСТВ

The paper offers practical recommendations for improving the mechanisms of public-private partnership in the form of a concession. Within the scope of this study, a concession is viewed as a relationship framework in which to attain socially significant goals, the government or a municipal unit transfers to the concessionaire (natural or legal entity) the right to perform on a contractual basis some of its functions to possess, use, and under specific conditions, to dispose of public or municipal property. These relationships are valid during the concession agreement period. Guarantees to private investors in the area of PPP and infrastructure concessions have been adapted according to the current Ukrainian legislation. The concessionaire’s business guarantees include: prospects for ownership rights acquisition for property outside highway lanes; a possibility of resolving disputes in the International Arbitration Court, a possibility to launch a project company for specific project realization (a special purpose vehicle, SPV. It is argued that providing guarantees for concessionaire investment returns is paramount. The above guarantees should cover a restraint on concessionaire’s property and assets forced alienation; the principle of non-interference in the concessionaire’s business; guarantees of reimbursement by the grantor of all investments made by the concessionaire (in case of contract termination due to the grantor’s fault); envisaged norm according to which the fare is fixed at an investment-based rate that ensures compensation of the concessionaire’s expenses. The implementation of concession relationships pattern in the transport infrastructure of Ukraine has contributed to outlining the key prospects for its development and enhancement, in particular through compliance with the following principles: application of legislation in force at the time of concluding a concession agreement; imposing a legislative ban on changes related to running concession business; guarantees of concessionaire’s loss coverage caused by government authorities’ decisions that breach the concessionaires’ rights.

Sofregaz v. NGSC (CA Paris)

On June 3, 2020, the International Commercial Chamber of the Paris Court of Appeal (the Court or the Court of Appeal) dismissed the annulment application brought by the Société Française d'Etudes et de Réalisation d'Equipements Gaziers (Sofregaz, now called TCM FR) of an arbitral award rendered in Paris on December 27, 2018, in favor of the Iranian Natural Gas Storage Company (NGSC), pursuant to the Rules of Arbitration of the International Court of Arbitration of the International Chamber of Commerce (ICC Rules). The Court ruled in particular that U.S. sanctions against Iran do not form part of French international public order but that European Union (EU) and United Nations (UN) sanctions do. This ruling provides useful guidance on the interaction between international sanctions and international arbitration.

Proceedings before the International Court of Arbitration for Sport

For a long time now, the field of sport has no longer been determined solely by its emotion and fascination with the athletes' readings, but by economic interests, which can be enforced in court if necessary. Until now, the internal bodies of the association were responsible for this and subsequently the state courts. The International Arbitration Court of Sport in Lausanne (Switzerland) has now become an international instrument that replaces both national courts and national arbitration courts or association arbitration tribunals.

EAEU INTEGRATION PROCESSES AS A FACTOR INFLUENCING THE TRANSFORMATION OF RUSSIAN BUSINESS LEGISLATION

The processes taking place in the modern world allow us to say that interstate integration is actively developing, and as a result, similar processes are observed in the sphere of law. In this regard, it is clear that there is a need to reflect and identify general trends in the transformation of Russian legislation under the influence of integration processes. This article attempts to identify the relationship between legal and economic integration, to determine the role and place of the EAEU integration processes in the ongoing changes in Russian business legislation, and to formulate proposals to improve the effectiveness of legal integration. First of all, it is necessary to understand the nature of the process, and the historical, legal and economic aspects of integration within the EAEU are monitored and analyzed. In addition, the results of a detailed analysis of both the regulatory component, in terms of the regulation of economic spheres, and the positions of a number of researchers of integration processes, which allowed to draw an unequivocal conclusion about the high degree of influence of the EAEU integration processes on the business legislation of the Russian Federation. Trends in the impact of the EAEU Court on legal integration and, as a result, on the transformation of Russian law have also been revealed. The opinion formulated proposals to improve the effectiveness of legal changes in the sphere of business law of Russia in connection with the integration processes of the EAEU, as well as the opinion on the need to consider the issue of giving the EAEU Court the power to resolve disputes of economic entities of the EAEU member states (international arbitration court). Attention is also drawn to the need for closer cooperation between national executive, legislative, judicial and law enforcement authorities.

International Commercial Arbitration and the Possible Application Thereof in Iraq

International commercial arbitration is a special judicial system based primarily on an agreement, be it an arbitration clause or an arbitration agreement (compromise), between
 parties to a dispute. It is therefore a system aiming at settling commercial disputes by submitting them to a single arbitrator, or an arbitral panel, or an arbitral tribunal (e. g. , the
 International Court of Arbitration). It is therefore also a means for settling an existing or future dispute that entails refraining from resorting to the competent judiciary. It is also
 an extra – judicial action aiming at establishing justice between people. The aim of arbitration is to bring justice to parties in conflict, but it is also designed to preserve peace
 among them, by providing solutions that are deemed satisfactory by each party, and through direct confrontation. It is a technical means for peaceful cooperation between
 countries with different systems. Resorting to international commercial arbitration is intended to solve a dispute based on a desire for reconciliation, to thereby avoid private
 retribution, without waiving the protection of the law, although it does entail waiver of state judges’ jurisdiction to rule over the dispute, since the parties choose their own
 judge.
 This type of Arbitration is called “international” if it relates to international commercial interests. Arbitration is also used in other areas, e. g. , personal status and tribal arbitration
 in Iraq. However, our study concentrates on international commercial arbitration and the possible application thereof in Iraq.

Adjudicating infrastructure: Treaties, territories, hydropolitics

In 2013, an international Court of Arbitration delivered a two-part decision on the legality of the Kishenganga Hydro-Electric Plant, located in the internationally disputed territory of Kashmir. The court was convened under procedures detailed in the Indus Waters Treaty of 1960, a landmark international water treaty between Pakistan and India mediated by the World Bank in the 1950s. The Kishenganga case is part of the ongoing hydropolitical competition between Pakistan and India over the use of Indus waters and the development of new infrastructures on the river system. This paper draws on critical water geography and geopolitical theory to guide a close, critical, and contextual reading of competing interpretations of the purpose and objective of the Indus Waters Treaty made during the Kishenganga case. It argues that two specific geopolitical imperatives powerfully shaped the legal strategies of state elites: downstream territorialism and basin developmentalism. Pakistani lawyers drew on the treaty negotiation archives to argue that its primary objective and purpose was the protection of vulnerable downstream territories. Indian lawyers, however, drew on the text of the treaty and the archives to argue the primary objective was the maximum economic development of the Indus Basin. I also discuss the relationship of these imperatives with David Harvey’s influential understanding of capitalist states acting under the dual pressures of the “territorial” and “capitalist” imperatives. By analyzing how geopolitical imperatives shape strategies of treaty interpretation, the paper develops a legal and geopolitical contribution to critical water geography. The paper also makes a methodological contribution by demonstrating how treaty negotiation archives represent a rich and underutilized resource for hydropolitical analysis.

Knowledge in the dark: scientific challenges and ways forward

A key dimension of our current era is Big Data, the rapid rise in produced data and information; a key frustration is that we are nonetheless living in an age of ignorance, as the real knowledge and understanding of people does not seem to be substantially increasing. This development has critical consequences, for example it limits the ability to find and apply effective solutions to pressing environmental and socioeconomic challenges. Here, we propose the concept of “knowledge in the dark”—or short: dark knowledge—and outline how it can help clarify key reasons for this development: ( i) production of biased, erroneous, or fabricated data and information; ( ii) inaccessibility and ( iii) incomprehensibility of data and information; and ( iv) loss of previous knowledge. Even in the academic realm, where financial interests are less pronounced than in the private sector, several factors lead to dark knowledge, that is they inhibit a more substantial increase in knowledge and understanding. We highlight four of these factors—loss of academic freedom, research biases, lack of reproducibility, and the Scientific tower of Babel—and offer ways to tackle them, for example establishing an international court of arbitration for research and developing advanced tools for research synthesis.

English

Countries lack the infrastructure to deal with the drainage following flashfloods from localized downpours which may originate from localized evaporation or its combination with that from surroundings or from hurricanes. The natural distribution of water is the best and optimum for the globe. Among the world’s riparian countries, India makes her territory both the sources and the sinks of river discharges by constructions of dams, reservoirs, barrages, weirs, etc. on international rivers and diversion of their courses within herself. Water confinement constructions make rivers silted heavily reducing their discharge capacities all through but more so in the downstream. The two catastrophic incidences – 2013 Uttarakhand and 2014 Jammu-Kashmir - presented in this article vouch for the curses of water confinement. Theoretical treatments have been provided for studying the impacts on the climatic variables for pre- and post-dam periods. Against the backdrop of these incidences, India has threatened her western neighbor of cutting off water supply which she has already done to the eastern neighbor. She, however, opens the gates of all dams and barrages built upstream of the river-silted eastern neighbor Bangladesh and floods that country causing irreparable losses of lives and properties, and adding misery to millions of people when India fails to accommodate excess water. On top of this confinement of river discharges within India, she has been working on the master plan of river networking. It is imperative for judges of international arbitration court, donors, World Bank, policy makers, etc. etc. to take lessons out of this study.   Key words: Dams, reservoirs, evaporation, macrostate, microstate, extreme event, powerhouse, river basin, Ganges, Indus, Teesta, tributary, distributary, water piracy, upstream, downstream.

China's Innovative ISDS Mechanisms and Their Implications

International arbitration before Western-based institutions is the dominant mode of investor-state dispute settlement (ISDS). The Washington-based International Centre for Settlement of Investment Disputes (ICSID), the Hague-based Permanent Court of Arbitration, the Arbitration Institute of the Stockholm Chamber of Commerce, and the International Court of Arbitration of the Paris-based International Chamber of Commerce handle the vast majority of the world's international investment disputes. ICSID alone administers over sixty percent of the cases, while the others account for an additional twenty percent. Yet China has begun to innovate in ISDS over the last few years. These innovations have taken three main forms. The first is the extension of the jurisdiction of existing commercial arbitral institutions in China to cover foreign investment disputes. The second is the creation of new Chinese courts to possibly handle contractual investment disputes. The third is the formation of joint arbitration centers with states in regions where China invests heavily, such as Africa. This essay describes these changes and argues that they should be understood as reflecting an important facet of China's broader international strategy. In particular, the recent innovations aim to furnish adequate protection to Chinese investors in foreign countries, particularly developing states; actively shape international discourses on international investment law; and offer alternative, Chinese-initiated institutions that will break the monopoly of the West.

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

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

Transformations Encouraged by Story Telling

As an assistant professor, I reflect on the passing year during which my professional path took me from Texas to the Middle East to design, develop, facilitate, and assess adult and higher education learning at the A merican University in Dubai. One such educational opportunity allowed me to take 27 adult learners from a variety of ethnic backgrounds (Saudi, Iranian, Iraqi, Emirati, Bahraini, Jordanian, Egyptian, Lebanese, Indian, and Kazak) on a faculty-led study abroad course (International Studies: 375) to Paris and Geneva to explore the roles that international organizations--the International Federation for Human Rights (FIDH), International Chamber of Commerce (ICC), International Court of Arbitration (ICA), United Nations Higher Commission for Refugees (UNHCR), World Trade Organization (WTO), and International Organization for Migration (IOM)--play in business, politics, and global affairs. Cogent testimonies of transformative learning manifested over the span of the course as well as new considerations for facilitating adult learning abroad. I begin this reflection with my own sojourn into international transformative education and finally offer considerations about the use of narrative to encourage transformative adult learning in study abroad programs. As professionals in the field of adult and higher education, we recognize the path into any learning community is riddled with complexities of life exigencies. My own journey into the field of adult and higher education was convoluted by financial hardship, personal doubt, and limited social support. Being the first of 12 siblings to pursue higher education, I found messages and meaning made about higher education to be overwhelming, conflicting, and confusing. Culminating factors, compounded with increased competition in employment, made me wonder if any of the time and money I spent was even worth it. I wrestled with this as an undergraduate adult learner in the context of a transactional, overpriced educational classroom. Toward that educative journey's completion, I found light at the end of the tunnel in an experiential, transformative study abroad course in Spanish language and culture. Moving Toward International Transformative Learning Transformative learning abroad, although not an outright given, can occur through critical reflection, questioning, and social engagement in inherently different ideologies. The result can be a cognitive re-ordering of perceptions, unlearning of stagnant truths, and acceptance of new assumptions. As an educator, one role is to create opportunities for such complex experiences, discourse, and self-reflection, so learners may begin to find inherent dubiety in often long-standing certainty (Kim & Jeris, 2009). Baumgartner (2001) further discusses the function of relationships and sharing experience in the facilitation of transformative learning. As non-Western experiences of adult and higher education learners are largely absent from the expansive pool of transformative education research (Kim & Jeris, 2009), considerations about how complex discourse and sharing experiences emerged in a short-term course abroad was of particular interest. To promote confrontation of complex issues throughout the course abroad, each international organization visit was followed by a minimum 1-hr discussion to unpack and dialogue about various sensitive and non-sensitive political, economic, cultural, and social issues. Creating spaces for critical reflection and dialogue within short-term study abroad curricula offers learners ways to collectively connect with peers and challenge thinking. Interestingly, learners' narratives served as a point of entry into the discussion. Johnson and Golombek (2011) discuss narrative as a description, explanation, analysis, interpretation and construal of one's private reality (p. 490). Sharing stories during the international studies course became a way for learners to identify shared experiences with one another. …

Statisticians Introduce Science to International Doping Agency: The Andrus Veerpalu Case

In March 2013 the international Court of Arbitration for Sport (CAS) made an unprecedented decision. The case involved Andrus Veerpalu, an Estonian Olympic Gold Medalist in cross–country skiing who...

Indirect Expropriation in Private International Law

In the modern theory and practice of international investment law on forced removal of foreign ownership, the issue of indirect expropriation remains topical. Despite the fact that the term “indirect (“creeping”) expropriation” is not legally secured, it is actively used both in the doctrine and arbitration practice. Analysis of judicial practice shows that the courts tend to develop and specify the signs indirect expropriation of foreign property so that eventually they could be fixed in the international regulatory system. International arbitration courts are trying to establish a fair balance between the rights of investors and the rights of the state to regulate.

Towards a Truly International Court of Arbitration

The time has come for the current means of resolving international commercial disputes to be modernized and for an a-national approach, comparable to that of International Centre for Settlement of Investment Disputes (ICSID), to be adopted. This article proposes the creation of a truly international court of arbitration, established through a multilateral convention, to usher in a new age of international commercial dispute resolution.