International Arbitration Law Research Articles

Underlying Policy Considerations for Assigning the Applicable Substantive Law in International Commercial Arbitration

In international commercial arbitration, when the parties do not choose any law to govern the substance of their disputes, arbitrators are responsible for doing so. The inherent flexibility of the arbitrator’s discretion makes this task critical, as their decision can significantly impact the outcome of the arbitration. This article aims, to examine relevant policies that underlie an arbitrator’s choice of the applicable substantive law in the absence of the parties’ choice. It employs a comprehensive blend of secondary research and analytical methodologies, to identify and evaluate the nature of these policies, highlighting their possible extremes and, or irreconcilable elements. This article highlights the distinction between the direct and indirect methods used to assign the applicable substantive law and questions the practical application of these methods by arbitrators. It also explores relevant policies from three perspectives – a transnational perspective, a party perspective and a jurisprudential perspective. The findings suggest that specific, policy considerations influence the arbitrator’s decision-making process, regardless of the method employed to assign the applicable substantive. By understanding and assessing these policy considerations, arbitrators can make informed decisions when assigning the applicable substantive law in international commercial arbitration.

Nonarbitrability and Mandatory Rules: Brothers, Not Twins

Notwithstanding the lack of clear legislative intent, Belgian judges have unilaterally prohibited the arbitration of exclusive distribution disputes, unless a specific Belgian pro-distributor statute was applied or unless similar substantive foreign rules were applied. However, in 2023, the Court of Cassation finally reversed its jurisprudence. Yet, the syllogism underlying this longawaited reversal remains unsatisfactory. It mistakenly equates a conflict-of-laws issue concerning mandatory rules with questions of nonarbitrability under international arbitration law. Such an overly simplistic assimilation is inappropriate in many respects. It dilutes the tailored legal standard applicable to international arbitration into a lesser question of applicable rules. It unduly prevents a subject matter from entering ratione materiae into the arbitration field. Upon closer examination, it conflates two substantively different gateways to arbitration: the nonarbitrability doctrine (Article V(2)(a) of the New York Convention) and the public policy exception (Article V(2)(b) thereof). In so doing, it needlessly erodes confidence in the arbitral process, which is based on parties’ autonomy, and violates the principles of judicial non-interference in international arbitral proceedings and of competence-competence. In essence, regardless of the pro-arbitration outcome in the case at hand, this flawed syllogism violates the New York Convention’s straightforward language and pro-arbitration ethos by potentially generating unnecessary, unforeseeable, and improper exceptions to arbitration.

التحكيم الالكتروني الدولي ومدى كفاية قواعد الاسناد في القانون المدني العراقي لتحديد القانون الواجب التطبيق على موضوعه وسير إجراءاته

The electronic arbitration is applied by the agreement of the arbitration parties to submit their disputes arising from contracts concluded by electronic means to a third party to decide them according to based on the parties' agreement, by modern communicating means and electronic technologies different from traditional means used in traditional arbitration. The electronic arbitration will be international, if the legal relation which is the subject-matter of the arbitration, is a legal relation interspersed with a foreign element. Or a special international contractual relation. It is worth-bearing in mind that although Iraq did not issue an international electronic arbitration law, but this study tried hard to determine the applicable law to both the procedures and the subject of the international electronic arbitration in conformity with the legal provisions available in the Iraqi law. We tried hard, in order to perform this legal institutionalization, to resort to some texts of the Iraqi Civil Law No. (40) of 1951, the law of civil procedures No. (83) of 1969, and the law of the electronic signature and electronic bargains No. 78 of 2012.

Emmanuel Gaillard's Theory of International Arbitration: The Basis for a Uniform Law of International Arbitration

Emmanuel Gaillard's Theory of International Arbitration: The Basis for a Uniform Law of International Arbitration

Legitimacy Concerns regarding the Application of Soft Law in International Arbitration in Connection with the Independence and Impartiality of Arbitrators

The growing body of soft law instruments in the field of arbitration may provide us with numerous positive outcomes; however, its application has also gathered a substantial amount of criticism. The present article addresses concerns of legitimacy voiced in today’s arbitral practice and the possible negative consequences of the excessive application of soft law in arbitration. In order to put these concerns into a more concrete perspective, the article discusses these legitimacy questions, focusing on soft law regarding issues of conflicts of interest and the impartiality and independence of arbitrators, and provides the reader with an outlook for the international acceptance and applicability of the International Bar Association’s Guidelines on Conflicts of Interest in International Arbitration.

Confidentiality in Arbitration: A Principled Response to the Opportunity for Codification in England and Wales

Confidentiality is often perceived as a pivotal aspect of arbitration, shielding sensitive information from unauthorized disclosure and preventing potential harm. This article examines the opportunity for codification of the confidentiality obligations in arbitration in England and Wales in light of the Law Commission’s recent review of the Arbitration Act 1996, emphasizing the importance of clear and predictable rules to enhance England and Wales’ status as a favoured arbitral seat. Codification will offer legal certainty and the concern that users from around the world must navigate a complex web of case law to determine the existence and scope of confidentiality duties, making it less accessible. By enshrining confidentiality in the Act, informed decisions can be made without ambiguity. This article is split into four sections, examining the concept and significance of confidentiality, the global development of confidentiality rules, the opportunity for codification, and the potential benefits of harmonizing international arbitration law. For codification to be effective, the drafters must define robust exceptions, such as consent, court orders, protection of legitimate interests, and public interest. Drawing inspiration from other jurisdictions, the Act should allow flexibility for courts to address unforeseen scenarios. By embracing confidentiality and providing clarity, England and Wales can strengthen its position as a leading jurisdiction for international commercial arbitration. Confidentiality, Arbitration, Procedure, Codification, Uniformity, Harmonization, UNCITRAL Model Law, Institutional Rules

Advocacy for Online Proceedings: Features of the Digital World and Their Role in How Communication is Shaped in Remote International Arbitration

The Covid-19 pandemic disrupted in-person dispute resolution proceedings, leading to the rapid adoption of digital technologies for remote hearings in international arbitration. The use of these technologies has opened up new possibilities for enhancing procedures, improving efficiency, and streamlining processes. However, it also raises concerns about transparency and authenticity in virtual hearings. This paper explores the impact of digital technologies on the semiotics of law and legal communication in international arbitration, considering the intersections between new technologies and persuasion. Based on practices like the use of e-evidence, debates surrounding remote hearings, and the formulation of standards for stakeholders’ behavior, the study takes a practice-based approach, exploring cognitive processes, such as memory and attention, and their influence on the behavior of counsel, arbitrators, and witnesses in remote hearings. It highlights the key issues, findings, challenges, and future research opportunities arising from the introduction of digital technologies in this field, including considerations on how stakeholders of a virtual hearings are affected by the unique features of the digital environment.

A proposal for international arbitration law in Namibia based on the UNCITRAL Model Law on International Commercial Arbitration

International business arbitration is not covered by Namibia's present arbitration law, the Arbitration Act 42 of 1965 (the Act). There is no explicit language in the Act that addresses foreign arbitration as the Act, solely by default, covers national or domestic arbitration. When it comes to international arbitration, the Act has many flaws. Modern commercial arbitrations are increasingly being guided by the Model Law on International Commercial Arbitration (MLICA) of UNCITRAL (the United Nations Commission on International Trade Law) or by state legislation that has been influenced by it. It is undeniable that Namibia must embrace MLICA, including the majority of the 2006 revisions of the MLICA, in order to participate in the global economic village. Furthermore, Namibia has not yet ratified the 1958-adopted New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (CREFAA), which has been hailed as the most effective treaty governing global trade. This article suggests that Namibia should implement both the MLICA and the CREFAA. If this strategy is not adopted, businesses in Namibia will be hesitant to engage in international business transactions due to the lack of legal certainty that the New York Convention and contemporary domestic arbitration legislation bring.

Seven dirty tricks to disrupt an arbitration and the responses of international arbitration law

Abstract Disruptions to arbitral proceedings are a well-known phenomenon. At the same time, obstructive behavior is not encountered in every arbitration and most parties will behave in an orderly manner during the course of the arbitration. This, however, does not mean that incidents at the margins of the system of international arbitration should be ignored. If they are not dealt with appropriately, they can spread and infect the entire system. The article focuses on the methodologies available to arbitrators or national courts confronted with tactics developed by litigants in an attempt to disrupt an arbitration to which they had previously consented, and examines seven such attempts as they have developed in the history of international arbitration, together with the responses developed by international arbitration law.

Counterclaims in Investment Arbitration: Towards an Integrated Approach

Abstract It is widely accepted that counterclaims may not be used as a means to exceed the limits of a tribunal’s jurisdiction, while they must at the same time be closely connected to the other party’s claim. However, in the particular context of investment arbitration, these two propositions create a tension that has led to a problematic and unfair construction of the investor-State dispute settlement mechanism. This article explores the foundations for a better, more integrated approach. It argues that jurisdiction over counterclaims should be seen as incidental to the one already established over the original claim, allowing tribunals to hear a wider range of counterclaims. This is inherent to the exercise of a tribunal’s adjudicative function, and rests on a foundation not only of implied consent, but also on one of principle. The approach presented here has the potential to protect counterclaims as a matter of procedural fairness and to address some of the reasons for the backlash against international investment arbitration law.

Seat of arbitration: problematic issues of theory and practice

The effectiveness of arbitration, as well as its attractiveness for disputing parties, depends more on the existing and developed legislative framework of the convention (ratification of numerous multilateral international legal instruments) and national arbitration legislation. It is the combination of these sources that guarantees the procedural autonomy of the arbitration, while significantly reducing the interference of national courts, In addition to the existence of mandatory and optional rules for the provision of such assistance in arbitration.
 Unfortunately, such a legal framework for the consideration of foreign economic disputes by international commercial arbitration may be too complex and even sometimes unclear and problematic. However, this ambiguity in the interpretation and understanding of the law of international commercial arbitration can be addressed by paying sufficient attention to the definitional apparatus, the assessment of the development and improvement of international and national regulationslegal acts that gradually depart from archaic approaches to the definition of regulatory law through more effective analysis.
 Thus, in this article special attention is paid to theoretical and applied problematic issues of determination of «seat of arbitration». Due to clear inconsistencies and uncertainty in the national legislation and enforcement activities of many countries regarding the place of arbitration, this leads to numerous «procedural traps» in considering applications for recognition and enforcement of the award of international commercial arbitration.
 The author pays special attention to the analysis of the legislative regulation of the place of arbitration in Ukraine. And, from the perspective of the jurisprudence of the European Court of Human Rights and the Supreme Court, conclusions are drawn regarding the corresponding contradictions in the definitional apparatus.

Arbitration under the Arbitration Act, 2001, Bangladesh: Procedural drawbacks and some plausible solutions

In today’s world, parties in an agreement always want quick, costeffective and fair dispute resolutions mechanism. As an alternative form of dispute resolution, arbitration is considered one of the most common and binding methods of dispute resolution between parties. In the current age of global movement towards the promotion of foreign investment in Bangladesh and keeping pace with the international business and international commercial arbitration law, Bangladesh is not lagging behind any more. As a part of the Indian subcontinent, the practice of Arbitration in Bangladesh has been being observed in various forms since the time immemorial. Nonetheless, a new arbitration law named as ‘The Arbitration Act, 20011 was enacted consolidating both domestic and international commercial arbitration through repealing the British enacted ‘The Arbitration (Protocol and Convention) Act, 1937’, and ‘The Arbitration Act, 1940’.2 The new Act basically based on the Model Law on International Commercial Arbitration, 19853, which generates a single and unified legal system for arbitration in Bangladesh. However, the much wanted model arbitration law is not free from flaws and in some extent it fails to meeting up the expectations of the parties in agreement, who want the fast and easy access to justice. The main purpose of this paper is to examine the existing arbitration law and procedures in Bangladesh, what are the enabling and constraining factors for ensuring access to justice in the mentioned process, and how it can be used effectively to resolve the shortcomings in a rapidly evolving arbitration process where parties’ satisfaction is a key criterion. Dhaka University Law Journal, 2022, 33(1), 143-162

Application of The Burden and Standard of Proof in Corruption Allegations Under ICSID Arbitration

Corruption allegations are a frequently-encountered issue in international investment arbitration. These allegations are mainly used as a defense mechanism by states, aiming to dismiss investors’ assertions in arbitral proceedings, because if corruption is upheld, the tribunal will be deprived of jurisdiction. Adjudicating corruption, on the other hand, is a very challenging task to accomplish for tribunals. This is mainly due to the lack of means and mechanisms to conduct serious investigations and fact finding in order to establish corruption. Because adjudicators cannot abstain from rendering a verdict even though they doubt facts or evidence, legal systems have adopted some tools to aid this process. The concepts of burden and standard of proof are two the main tools that have been used for this purpose. However, even though there are a few clauses regarding the standards of evidence in UNCITRAL Rules or IBA Rules, there is a lack of binding regulation of standards of evidence in international arbitration law. Also, there are no rules under the ICSID Convention regarding the allocation of burden and standards of proof. In this context, the analysis of the application and allocation of the burden and standard of proof in international investment law becomes an essential issue for resolving such disputes.

Damages for Breach of an Arbitration Agreement: A Korean Law Perspective

With the continued growth of international and cross border trade, there has also been an exponential growth in the use of international arbitration as a dispute resolution mechanism. However, there are unfortunately still many instances in which a party breaches an arbitration agreement and brings a claim in another forum and jurisdiction causing a significant time and cost burden to the other party. One of the possible deterrents of such behaviour is the ability in some jurisdictions to bring a damages claim against the party that breaches the arbitration agreement. Civil and common law jurisdictions have sometimes had different approaches to whether such a claim was possible. Korean law has very limited jurisprudence in relation to this issue despite Korean companies being one of the leading users of international arbitration and Korean law frequently applied in arbitrations. This article assesses how Korean law should deal with a damages claim for breach of an arbitration agreement by examining other civil and common law jurisdictions, namely Germany and England, as well as Korean law on damages. The article concludes that a claim for damages for a breach of an arbitration agreement is possible and the traditional Korean view that arbitration agreements are of purely procedural in nature and have no substantive rights and obligations arise from them does not fit with the realities of international commercial transactions and the parties’ intentions. international commercial arbitration, breach of arbitration agreement, damages claim, Korean law, civil law jurisdiction

The application of the international and domestic arbitration law in settlement of legal disputes: A comparative study

This paper aims to analyze the credibility and perception of business entities on arbitration with domestic and international elements, which operate particularly in the Republic of Kosovo and the Republic of North Macedonia, in resolving economic and civil disputes. The main advantages that arbitration has in resolving disputes are the speed of resolution and the lowest cost of expenses (Larson, 2018). In the article, comparative, interpretative, and analysis methods are used to reach the final goal of this paper. In this paper, it is found that business entities, which are registered in the Republic of Kosovo and in the Republic of North Macedonia, prefer arbitration as an alternative method of resolving disputes, but their experience regarding the domestic arbitration response is not at the gratification level. These findings are important to quote and avoid obstacles to the promotion of arbitration, and the perception, and credibility of business entities, which may be parties in legal economic, and civil legal disputes with a domestic or international element. From this data, we create a general puzzle on the probability of promotion and use of arbitration in the future in this region.

Https://uet.edu.al/jus-justicia/articles/adr-and-domestic-courts-in-albania/

Practice has shown that the western democratic legal systems have developed several alternative dispute ways for resolving disagreements between the parties other that national courts. The article aims to explore and highlight the differences between peaceful means of conflict resolution and to provide a clear framework of the necessity of their promotion and further development. Depending on the different jurisdictions of the states, the opinion regarding the duties, rights and obligations of the parties in the process of ADR is different between each of this means and different regarding the domestic courts. In most legal systems the role of the conciliator, arbitrator or mediator it is simply to try to bring the parties together. For example, the proposed possibility of arbitration to withdraw the disputes from the jurisdiction of national courts is extremely beneficial to investment attractiveness. All this led to the exponential growth of bilateral and regional agreements for the protection and promotion of foreign investment, where one of the main provisions is the possibility of transmitting disputes between investors and the state of international arbitration. The sources of the law of ADR lie in a number of international conventions, international model laws and model rules, and institutional rules. To these may be added domestic legislation, reports of awards and academic writings. An arbitrator or mediator is described as ‘a disinterested person, to whose judgment and decision matters in dispute are referred and must act in accordance with the rules of natural justice. Mediation practitioners point to a number of advantages which the mediation process has over the domestic court. In fact, it must be acknowledged that ADR usually takes place when at least one of the parties is unreasonable. Helping the parties to see the reason is a useful social role. The difference between this methods of resolving disputes would be so that the purpose of a conciliator, mediator or arbiter, would be to encourage the parties themselves to understand what benefits they can get from resolving the case out of court in which way they deem most appropriate. Historical scientific methods are used in this research. The theory part it is presented with concrete cases from practice of both judicial and non-judicial ways of resolving conflicts, logical system, method of analysis and synthesis. In this paper as well are used formal-legal and comparative-legal methods. The writing is guided by the provisions of the conceptual theory of international arbitration law and domestic law. Research methods were used, of simple presentation of facts to argue the concrete point of view and the characteristics of the clarification of this research.

Fransız Milletlerarası Tahkim Kanunu’nun İncelenmesi

Abstract International arbitration notion contains to be commercial and to be international together, different from national arbitration notion. To be international criterion is to the fullest extent arranged in old French CPC art. 1492, which contains also French Arbitration Code. According to this article which is protected by 13 January 2011 reform; arbitration which is about international commercial benefit is an international arbitration. In 1992 French Arbitration Commitee prepared a report with the name of “Perspectives for İmprovement of French Arbitration Law”. The amendements of the directive of 13 January 2011 is neither a revolution nor an easy make up but it is a real reform which can be known as by the words clarity, definiteness, flexibility, freedom of choice, effectuality and speediness. The reform of 2011 did not changed the liberal structure of the French international arbitration law which is stand by freedom of contract and limited only by public policy. Keywords: France, International Arbitration, Freedom of Choice, Public Policy, Liberal

Soft Law in International Investment Law and Arbitration

Abstract In the more recent decades, international investment law (“iil”) and arbitration have been going through a process of recalibration prompted by both the intensification of cross-border capital flows and the States’ growing concerns over the potential restraints iil may impose upon the pursuit of public interests. The present contribution will pay attention to a specific feature that can be observed within these developments, i.e. the role played by soft law in investment arbitration and, more generally, under iil, also with a view to assessing the impact on the formation of binding international law of instruments formally devoid of normative force within the international legal order. After an introduction (Section 1), the contribution is articulated into four sections. Section 2 will first define the field of investigation. The case law of investment tribunals and the treaty practice under the more recent iia s will be then explored as to the reliance on soft law instruments for the purposes of settling procedural (Section 3) and substantive issues (Section 4). Some final remarks will close (Section 5).

EU Law and Procedural Autonomy in International Commercial Arbitration

This article examines the impact of EU law in international commercial arbitration. EU law has become increasingly relevant in the world of commercial arbitration and while this may not at first seem to be a problem, this article argues that EU law has a distinctive nature which makes it fundamentally incompatible with the arbitral legal order. In effect, the EU legal order has developed on the basis of a direct trilateral relationship between disputes involving EU law, national courts and the European Court. When we are concerned with ordinary judicial proceedings, this relationship is classically supported by the ‘principle of effectiveness’ identified in the case-law of the European Court, which requires national procedures to enable individuals to bring claims based on EU law. Crucially, however, the procedural demands that could be made by the EU legal order are limited by the twin ‘principle of national procedural autonomy’, meaning the Court refrains from directly prescribing modalities for access to national courts and leaves discretion for States to set procedures. Contrasting with this analytical framework, it is here argued that once claims based on EU law fall within the sphere of arbitration, the principle of national procedural autonomy is inoperative and the EU legal order can dictate the terms of review. It is submitted that the effectiveness of EU law is assured not by the standard principle of effectiveness but by the principle of effective judicial protection, thus securing the procedural primacy of EU law in the arbitral legal order.

The invisible stigmatisation of female practitioners in international arbitration

AbstractThe paper is a study of the gender-based stigmatisation process of elite professionals in an international legal field. It uses commercial arbitration as an example of an international profession and adds to the prevalent understanding of gender inequality by developing a framework called ‘invisible stigmatisation’. The main theoretical framework is supported by twenty-two semi-structured interviews conducted across five international arbitration jurisdictions and two original datasets. These data have helped to contextualise the nuances of gender-based stigmatisation in prestigious arbitral appointments and at the echelons of international arbitration law firms. The paper establishes that the stigmatising experiences drive elite female professionals and their gender-equality consciousness. These experiences also lead to them devise innovative strategies to minimise the effects of gender inequality on their professional lives.