International Arbitration Research Articles

Fair and equitable treatment as a combination of principles of law.

The article is dedicated to such a customary law-based criterion of the compliance of states’ behavior within their international obligations as it is the fair and equitable treatment. This investment treatment, from the one side, is an interweaving of the legal principles of justice and equality, and from another, is formed by interpretations of decisions of international investment arbitrations. In the article also listed and briefly described some principles of law including general and specific for the branches of investment law and international investment law as well as some cross-branch legal principles. The listing and descripting of mentioned legal principles is done based on well-known theoretical-pedagogical sources and acts of international organization. These legal principles create a noticeable influence on interpretation of the fair and equitable treatment by international investment arbitrations. On the basis of authoritative works on the international investment law a modern list of some elements of the fair and equitable treatment is also provided, some of these elements are either based on key legal principles for the branch of international investment law, or are their direct embodiment. There are also quotations from decisions of international arbitrations regarding foreign investments, which are provided as examples in the material. These examples make it possible to express the legal nature of the fair and equal treatment from the point of view of influence of certain principles of law on it or transfer the general conceptual meaning of this investment treatment as the protecting international investments remedy. Key words: investment treatment, fair and equitable treatment, general principles of law, legal principles of international investment law.

20th anniversary conference of the ICAL program – Evolution or revolution: have we mastered international arbitration or do we need a new blueprint for the future?

20th anniversary conference of the ICAL program – Evolution or revolution: have we mastered international arbitration or do we need a new blueprint for the future?

The Lake Mohonk Conferences on International Arbitration (1895–1916): Evoking and Mobilizing an “International Mind”

Between 1895 and 1916, a Conference on International Arbitration met annually at Lake Mohonk, New York, seeking to implement arbitration as a substitute for war. This article considers the aims, effects, and limitations of these conferences, including the problematic assumptions underpinning their apparent progressivism. The belief that an enlightened public opinion would play a decisive role in advancing arbitration will be interrogated, as will the conviction that the Mohonk group provided a mouthpiece for an emergent “international mind.” The article shows how these conferences evoked a “global” public opinion that was simultaneously (and paradoxically) expansive, exclusionary, forcible, and manipulable. It reveals too how American conceptions of internationalism took shape, anticipating aspects of Wilsonianism.

Standards of independence and impartiality in the context of international commercial arbitration

In this day and age, international commercial arbitration is widely regarded as an effective alternative dispute resolution mechanism, voluntarily chosen by a majority of parties. However, a pertinent question arises: why do an increasing number of international businesses prefer international commercial arbitration over national courts to resolve commercial cases? Apart from the efficiency and convenience that international arbitration provides, the arbitrator's professional ethics play a crucial role in maintaining the credibility and legitimacy of the process. Therefore, to bolster parties' trust in international arbitration, it is imperative to uphold the requirement of independence and impartiality of arbitrators throughout the arbitration procedure. Specifically, the arbitrator plays an important role in giving effective awards in the arbitral proceeding. Hence, each arbitrator is required to be independent and impartial so that the arbitrator's award is not questioned on the ground of lacking fairness. Furthermore, in order for the appointment process to operate smoothly, the independence and impartiality of arbitrators will be challenged in the relationships with the parties or the parties' lawyers.

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.

International Arbitration: Towards Sustainable Development and Environmental Protection

The paper considers the problem of transition to more environmentally friendly arbitration, which involves reducing the carbon footprint left by arbitration proceedings through the adoption of three main measures: 1) the use of renewable energy; 2) reducing or eliminating long-distance travel and air travel for the purposes of arbitration proceedings; 3) reducing waste and eliminating the use of paper documents. An important role in achieving this goal is taken by green protocols containing specific practical measures to ensure sustainability and environmental protection, addressed to certain participants in the arbitration community (arbitrators, law firms, service providers and arbitration centers), as well as initiatives of the arbitration centers themselves. However, given the advisory nature of the green protocols adopted as part of the Campaign for Greener Arbitration, as well as the possibility of derogation from the provisions of the arbitration rules providing for the transition to electronic document flow and online hearings, parties concerned about protecting the environment are recommended to include (or arbitration agreement) special green clauses.

Public Policy a Hurdle Under the Indian Arbitration Law: Critical Analysis

The traditional role of public policy was to limit the scope offoreign law, recognition, and enforcement of foreign judgments or awards. Sometimes domestic courts use this doctrine to strike down the foreign arbitral awards. Though the disputing parties are free to choose applicable laws in international commercial arbitration, when it comes to the recognition and enforcement of an award they rely on the domestic laws and courts. If the court thinks that an award before them deals with a matter violates public policy, the court may refuse to recognise and enforce it. There is no uniformity in public policy notion among the states, it has been interpreted in different ways indifferent jurisdictions so it becomes very difficult to say which award will be allowed and which will violate the principle. Therefore, it becomes a big hurdle in the way of international commercial arbitration. To deal with this issue Indian judiciary took a step to define it and limit the scope doctrine of publicpolicy. Finally, in 2015 Indian Parliament amended the Arbitration and Conciliation Act, 1996, and clarified the term ‘public policy’.

Substantive Scope of Arbitrator Restitution as a guarantee of litigation in international trade contracts

Stakeholders of international trade with its various patterns were keen on seeking further legal, financial, procedural, judicial and other guarantees, and managed to get guarantee of initiation of arbitration in the competent international arbitration centers which have become a reality for this type of contracts. As a result, legislation of countries in general, including Arab countries, were driven to enact laws of international commercial arbitration perception of their importance in attracting foreign investments and facilitating dealing with international trade contracts of various patterns. This legislation contained within its provisions cases whereby arbitrators can recuse arbitrator and relieve him from consideration of the arbitration litigation in case of realization or appearance of some reasons that challenge its impartiality and independence. Those provisions- the provisions of arbitrators' restitution- constitute important guarantee for arbitrators to be granted professional neutral award away from defect or deficit that may mar it. This research handles the matter of arbitrators' restitution and the stance of legislation and arbitration centers of this important matter, in addition to reference to some decisions that were made by the competent authorities to consider the restitution requests based on legal grounds.

The Myth of Transnational Public Policy in International Arbitration

Abstract This Article traces the concept of transnational public policy as developed in the context of international arbitration at the intersection between legal theory and practice. The emergence of such a transnational public policy, it is claimed, would enable arbitrators to safeguard and ultimately to define the public interests that need to be protected in a globalized economy, irrespective of national laws. A historical contextualization of efforts to empower merchants and their practices in Germany and the United States in the nineteenth and early twentieth centuries highlights their reliance on the mythical lex mercatoria that shaped English commercial law. Further contextualization is offered by the postwar invocation of “general principles of law recognized by civilized nations,” to keep at bay the application of supposedly less civilized, parochial legal orders, and by the consequent emergence of the “new” lex mercatoria as conceptualized especially in France. These developments paved the way, on the theory side, for later conceptualizations of self-constitutionalizing law beyond the state, especially by Gunther Teubner, and, on the practice side, for the notion of transnational public policy developed by arbitrators, especially by Emmanuel Gaillard, culminating in jurisprudential claims of an autonomous arbitral legal order with a regulatory dimension. In all these constructions, the recourse to comparative law has been a crucial element. Against this rough intellectual history, the Article offers a critique of today’s construction of transnational public policy by probing into its constitutional dimension and the respective roles of private and public interests. This allows, in particular, to draw on parallels to historic U.S. constitutional debates on the allocation of regulatory powers in federalism.

Institutional Arbitration: India’s Attempt to Transpire as an International Hub of Arbitration in Southeast Asia

International arbitration has flourished as a private adjudicatory forum and is consistently evolving because of its versatile nature, assimilating the needs of modern arbitration users. Arbitration institutes have bent over backward for the development of international arbitration. All jurisdictions, through sporadic amendments, upgrade their curial law in alignment with the current global arbitration norms. The leading jurisdictions of Southeast Asia, specifically Singapore, Malaysia, and Hong Kong, through timely updates in their curial law and atonement of their premier arbitration institute’s policies incorporating the recent trends, continue to grow and rival each other as regional players in international arbitration. Keeping in mind India’s position in the global market, it is about time that India reserves its name among the leading arbitration hubs in Southeast Asia. Upon consideration of the trifecta of the curial law, the role of the premier arbitral institution, and the deference of the judiciary of a leading arbitration hub, the author through critical analysis, coherent reasoning, and statistical interpretation of data attempts to unveil the following questions raised. Firstly, whether India’s endeavour to strengthen and reinforce institutional arbitration in India vide the Amendment Act, 2019 would derive the desired result. Secondly, whether India’s attempt to become an international hub of arbitration that could rival Singapore, Hong Kong, and Malaysian arbitration institutes would be successful. Consequently, India’s attempt to march alongside the leading arbitral forces in Southeast Asia is like a lucid dream having the potential of manifestation.

Research on Regulations of Third-Party Funding in IIA

In recent years, third-party funding (TPF) in international investment arbitration (IIA) has made a significant impact both in theory and practice. Nowadays, a Chinese law firm (the "PRC law firm") acted as the sole agent in the international investment arbitration case AsiaPhos v. China and the Chinese party won the lawsuit. One of the petitioners in the suit, AsiaPhos (Asiahua Group), claimed that its board of directors and its subsidiaries had entered into a formal financial aid agreement with a US-based fund, namely TPF. The financial support offers an opportunity to approach justice to applicants in economic distress or intending to share arbitration risks and also produces deterrence to the host state from any improper behaviors harming the interests of investors. However, on the one hand, due to commercial litigation, the arbitrators and investors will have a conflict of interest, on the other hand, third parties and investors usually live abroad, where governments lack the relevant information and competence that require international cooperation. In addition, the host country, especially the developing country, will also face the high cost of investment arbitration, and solving the problem must be needed for relevant mechanisms. This article discusses the application and development of TPF in IIA and analyzes the negative impact of TPF based on some legal issues, and then proposes the relevant rules and policy. On this basis, the study also provides suggestions for the practice of TPF from the perspective of the Chinese party to promote the development of TPF and puts forward advice for international investment rule-making balance in China.

Awarding Interest in International Arbitration: Identifying the Issues to be Considered for Coherence and Enforceability

The purpose of this paper is to analyze the legal position regarding awarding interest in international arbitration and identify the issues to be considered by arbitral tribunals. Despite the frequency of interest claims in arbitration, the area is shrouded in uncertainty. The uncertainty emanates from lack of uniformity and randomness in quantification of interest leading to undercompensation, incoherence, and inconsistency in the awards on interest. In identifying the pertinent issues to be considered in awarding interest, the paper relies on the doctrinal legal research approach to trace the legal basis for awarding interest and the interest rate to be applied. The approach justifies the use of primary legal text as sources of law, arbitral awards, and secondary sources to unveil the problem surrounding this area, analyze it, and identify the issues to be considered. The paper identifies the pertinent issues to be considered by arbitrators in awarding interest, and further unearths the legal basis of the issues from the generality of sources of law including sources of arbitral legitimacy. Indeed, the originality and value of this paper lie in the complexity and difficulty in navigating the issues of the award of interest and the little attention the current scholarship in arbitration pays to the issue, compared with other related areas such as quantification of damages. Thus, the issues identified and the need to systemically consider interest from the initial phase of arbitration will bring a new insight into the analysis of interest in international arbitration.

Jurisprudential Analysis of Precedents Invoked in International Investment Arbitration

With the increase of international investment arbitration cases and the development of arbitration practice, it is more common for arbitral tribunals to invoke precedents to explain the meaning of clauses and make judgments. However, many problems need to be solved in the process of invoking precedents. This paper starts from the jurisprudential analysis of invoking precedent in investment arbitration, analyzes the reasons why it is difficult for the arbitral tribunal to set aside it in practice on the basis of distinguishing the nature of invoking precedent, and then points out the doubts about the legality of the award made by invoking precedent, the intensification of the contradiction between the accuracy and consistency of the award results, and the resulting issues of the will of the respondent State. After analyzing the causes of these problems, the paper proposes to support the arbitral tribunal’s act of invoking precedents on the basis of improving the sources of international law, and strengthen the States parties’ interference in the interpretation of treaties by various methods, so that precedents can be applied more reasonably in international investment arbitration, and at the same time avoid the adverse effects of its improper application on international investment arbitration.

A Behavioural Approach to Confidentiality Rules and Practices in International Arbitration

A Behavioural Approach to Confidentiality Rules and Practices in International Arbitration

Provision of evidence in civil proceedings: a historical and legal outline of the development of legislation

In the work, research was carried out in the historical and legal context of the institution of securing evidence in civil proceedings, the origins of the modern system of normative provisions on securing evidence, the main stages of the development of civil procedural legislation in this part were revealed. Modern legislative approaches to the legal regulation of procedures for providing evidence in civil proceedings and problematic aspects of law enforcement are analyzed. In the 2017 edition, the Civil Code of Ukraine established certain novelties in the legal regulation of the procedures for securing a claim. Thus, the court, at the request of a party to the case or a person who may acquire the status of a plaintiff , must provide evidence if there is reason to assume that the means of proof may be lost or the collection or submission of relevant evidence will later become impossible or difficult. Ways of securing evidence by the court are questioning of witnesses, appointment of expertise, demand and (or) review of evidence, including according to their location, prohibition to take certain actions regarding the evidence and obligation to take certain actions regarding the evidence. In necessary cases, the court may apply other methods of securing evidence determined by the court. In the new civil procedural legislation, the list of methods of providing evidencehas been expanded, the terms for filing a lawsuit in the case of submitting anapplication for providing evidence before the opening of proceedings in the case have been extended, the procedure for providing evidence when transferring a case to an arbitration court and international commercial arbitration, detailed requirements for form and content have been clarified applications for the provision of evidence. Key words: provision of evidence, proof, means of proof, civil proceedings, court procedures

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

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.

Business Dispute Resolution: Insight from Indonesia and Saudi Arabia

In legal disputes, the crucial aspect lies in the execution of a decision. A decision holds no value if it cannot be effectively enforced, even if it possesses permanent legal force. To settle civil cases, two prominent institutions are employed: the court and arbitration. In the context of international business agreements, parties turn to international arbitration as a means of resolving disputes, employing neutral third parties. This paper delves into the process of international arbitration, particularly focusing on its application within the business sector. Various arbitration clauses in international business agreements establish international arbitration, with the objective of impartially addressing disputes between parties involved. A notable institution that facilitates such resolution is the Saudi Center for Commercial Arbitration (SCCA) in Saudi Arabia. However, the effectiveness of arbitration rests on the implementation of arbitration awards, which is influenced by the type of arbitration undertaken, whether national or international. Hence, this paper aims to draw a comparative analysis between the Indonesian National Arbitration Board (BANI) and the Saudi Center for Commercial Arbitration (SCCA), examining the legal basis employed and the processes involved in resolving arbitration disputes. By understanding the contrasting practices of these arbitration institutions, stakeholders can gain insights into optimizing dispute resolution mechanisms. The study holds practical significance for businesses and individuals engaged in international trade, emphasizing the importance of selecting the appropriate arbitration institution to ensure enforceability and expeditious resolution of disputes. Ultimately, the findings of this research contribute to fostering a more efficient and reliable international arbitration framework.

Analysis of the Settlement of South China Sea Disputes by the International Arbitration Tribunal

The settlement of South China Sea disputes by the International Arbitration Board is a complex challenge. The South China Sea is a strategic area disputed by several countries in Southeast Asia. International Arbitration Bodies play an important role in handling these disputes. Arbitration proceedings began in 2013 and a decision was announced in 2016. Although the decree is legally binding, its implementation still faces political and diplomatic challenges. Cooperation between the countries involved is necessary to achieve an effective solution.

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.