International Arbitration Research Articles

The South China Sea International Disputes with the ASEAN Area (in International Maritime Law)

In history, the sea has been shown to have had various functions, including as a source of food for mankind, as a trade highway, as a means of conquest, as a place for battles, as a place for fun and recreation, and as a means of unifying or separating nations. nation. As one of the regions with a high degree of heterogeneity, the Asia Pacific region is often considered a region that is very vulnerable to conflict on the basis of a fragile regional balance. The purpose of this study is to find out that one of the territorial conflicts in the Asia Pacific is the South China Sea conflict which involves several countries including China, Taiwan, the Philippines, Vietnam, Malaysia and Brunei Darussalam. This research uses a normative approach in accordance with international maritime regulations, especially UNCLOS and the UN Arbitration Council. The results of this study indicate that she said the South China Sea entered a new chapter by submitting a dispute over the issue of territorial claims to the Arbitration Court in The Hague, Netherlands. The Philippines in January 2013 has officially brought the territorial dispute in the South China Sea to the international arbitration body. Political disputes have been stopped and entered a new phase, namely legal settlement. The issue that arises is whether legal settlement can be the key answer to this territorial dispute, then whether legal settlement can create justice for the disputing countries. Furthermore, whether a legal settlement can dampen and create stability and security in the region. It may be very far if a legal settlement can fulfill some of the questions above.

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

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

Akibat Hukum Penerapan Prinsip Good Faith Pada Kontrak Investasi Internasional Di Indonesia

International Trade is a hot topic being discussed by the public because of the economic linkages in the progress of recent rapid development. In the international trade contract, there is not only goods trade activity but also service trade including contracts related to investment, finance, construction, transportation activity, and even contracts made in electronic. This research aims to find out and analyze regarding legal consequences of applying the principle of good faith which is only existed when the contract is executed in International Investment Contract in Indonesia. In addition, the other purpose is to find out and analyze the alternative solutions if a dispute is occurred. This research is doctrinal research using secondary data. The secondary data used is primary legal material, secondary legal material, and tertiary legal material. Moreover, technique of collecting data is carried on by library research. Meanwhile, technique of analysis data used in this research is qualitative data analysis using historical approach. The good faith principal which is only applied at the time of the contract will bring the dispute in the future. Therefore, if this principle is applied in the negotiation stage in each contract, the risk of the dispute in each contract will be smaller. Basically, good faith principal existed in humans as social beings who always need cooperation, though every country has different legal system in regulating the good faith principal. Hence, if there is conflict and dispute in the International Investment Contract, according to the law of Indonesia in the Act No. 25 Of 2007 concerning investment, it will be undertaken by international arbitration. However, it is possible to use other arbitration institution agreed by both sides. If there is dispute and the parties do not determine the legal choice and do not include it in the agreement, the institutions above can be used according to the agreement between the two parties. Meanwhile, for foreign investors who sign investment contracts in Indonesia, if there is dispute in the investment contract, it will be settled through International arbitration.

A Call for Rethinking International Arbitration: A TWAIL Perspective on Transnationality and Epistemic Community

Despite the increasingly diversified discourses in international commercial arbitration, this device of socio-legal regulation remains a relatively under-theorized subject. In particular, far too little attention has been paid to analyzing international commercial arbitration through critical approaches such as Third World Approaches to International Law (TWAIL). TWAIL is broadly understood as a methodological reorientation in international law by highlighting the historical links between the foundations of this field of law and the history of capitalism and imperialism as well as the colonial and Eurocentric legacies in the structure and operation of the current international legal regime. With this in mind, two fronts in international commercial arbitration invite a reexamination through a TWAIL perspective and by drawing on the concept of hegemony. One front is the transnational account of arbitration, and the other one is the epistemic community of arbitration. By examining these two notions through a narrative of hegemony of Western legal traditions, we posit that any effective attempt at redefining or reforming arbitral governance structure towards sustaining diversity requires a deeper understanding of historical and current world power structures and creating a vision for the prospect of dehegemonization.

Annulment of an International Commercial Arbitration Award: The Ukrainian Experience

Background: The development of foreign economic relations between business entities is the key to a stable economy of each country as a whole. During the implementation of these relations, the emergence of disputes and the procedure for their resolution is one of the main prerequisites for giving preference to alternative dispute resolution, namely international commercial arbitration. Despite the existence of unified rules and standards for the recognition and enforcement of international commercial arbitration awards, which are enshrined in the New York Convention of 1958, many issues arise in the doctrine of international civil procedure and law enforcement practice. These issues are the result of an inconsistent approach to arbitration in the national legislation of the member states of the New York Convention of 1958. Methods: The article will consider the distinction in the definitive approach of ‘challenging’ and ‘annulment’ the decision of international commercial arbitration through the prism of comparative legal regulation and evaluation of the results of both the domestic doctrine of arbitration and foreign scientific schools. In addition, during the analysis of the numerical judicial practice of national courts, the problematic issues of the procedural procedure for annulment of decisions of international commercial arbitration and the grounds for their annulment are considered. Results and Conclusions: Among the results, some gaps and contradictions were discovered, in particular, the ideas of ‘challenging’ and ‘appealing’ such awards. These procedures differ in that within the framework of the procedure for challenging the decision of international commercial arbitration, and the state court has no right to review such a decision on the merits.

Justice, Third-Party Funding, and Tax Treaty Arbitration

Resolving tax treaty disputes and improving dispute resolution mechanisms for tax treaty disputes have been important topics for international tax for decades, but it has not been an easy journey for the international tax community including policymakers, international bodies, and academics to come up with a clear solution. Similar to other global policies that require a multilateralagreement, a multilateral approach to a global tax policy cannot be easy as relations among the states with different backgrounds need to be coordinated and it involves critical issues relevant to national interests such as tax sovereignty, revenue, conflicts with domestic laws, and financial resources. That being said, the current global approach to resolve unsuccessful Mutual Agreement Procedure (“MAP”) cases of a tax treaty seems fairly straightforward under both the Organization for Economic Co-operation and Development and the United Nations’ Model Tax Conventions as both simply suggest arbitration to step in to render a final decision for the unsuccessful MAP cases. However, due to the factors mentioned earlier, the vast majority of the bilateral tax treaties do notcontain the arbitration clause, and it seems quite clear that an approach needs to be made from both within and outside the boundaries of international tax, tackling sub-issue by sub-issue, in order to improve dispute resolution mechanism for tax treaty disputes. This Article aims to highlight the importance of having the arbitration clause in a tax treaty, and focusing on the financial aspects of tax treaty arbitration, examines whether third-party funding (“TPF”), which has become more mainstream in traditional international arbitration proceedings, could be utilized in tax treaty arbitration to remove certain financial barriers as in other traditional arbitration proceedings by analyzing (i) any legal barriers, (ii) benefits from a justice perspective, and (iii) investment merit from a funder perspective. For the analysis, the Article specifically discusses (a) the current issues and the status quo of the MAP and tax treaty arbitration, (b) how TPF has been utilized in international arbitration and helping parties without orinsufficient financial resources, (c) differences and similarities between tax treaty arbitration and other types of international arbitration i.e., international commercial arbitration, investor-state arbitration, and state-state arbitration, and (d) TPF from both the taxpayer claimant and the funder perspective.

For a Universal Standard for Conflicts Disclosures

Abstract Amongst the many reforms of international arbitration that are currently discussed, the adoption of a universal standard for conflicts disclosures is particularly necessary. Currently, the subjective standard “in the eyes of the parties” that is adopted by the IBA Guidelines and the ICC Rules coexist with the objective standard “from the perspective of a fair-minded and informed observer”, as defined by the English Supreme Court in Halliburton. The author submits that the IBA-ICC standard is preferable for it fosters more complete disclosures and encourages transparency. However, the subjective standard does not eliminate the moral hazard of non-disclosures and the author recommends that it be combined with a purely objective requirement to disclose based on a pre-established list of circumstances.

Community Law (Lex Communitas) as a Modern Stage in the Lex Mercatoria Development

The concept of the medieval lex mercatoria is experiencing a renaissance in the context of the global spread of information and communication technologies and the scaling of cyberspace. Globalization was replaced by networkization, which gave rise to the phenomena of networks, network communities, network communications, and network law. The author has chosen an appropriate research angle — a look at the lex mercatoria through the prism of the current network world order. This led to the conceptualization of lex communitas as «community law», which is the main object of the study. Lex communitas is considered as a modern historical form of lex mercatoria, mediating the non-state rule-making of international professional communities, the multiplying functional subsystems of which include lex informatica, lex sportiva, lex constructionis, lex petrolea, lex proprietas intellectualis, lex cryptographia, sustainable business law (sustainable business law), etc. Affiliation with one or another professional community is the basis for the application of the norms of lex communitas. This approach, in a sense, opens up prospects for posing the problem of the grounds for legitimacy, of ways to legitimize the norms of non-state regulation in the subject area of private international law. The concept of lex communitas correlates with how the modern system of resolving cross-border private law disputes is being transformed, increasingly moving to an extrajudicial plane: from international commercial arbitration to platform and decentralized systems. The paper attempts to identify certain features of the current stage of development of the lex mercatoria, the quantitative composition of the norms of which is rapidly multiplying in parallel with the ongoing qualitative changes in the system of regulation of cross-border private law relations.

Le Mexique et l’arbitrage international d’investissement: un paysage pluraliste

This article examines Mexico’s experience with investment arbitration, focusing on its impressive evolution. Since the adoption of North American free trade agreement (NAFTA) in 1994, Mexico has signed several bilateral investment treaties (BITs) and free trade agreements (FTAs) containing investor-state dispute settlement (ISDS) arbitration clauses. An analysis of these various clauses reveals that Mexico has chosen the path of pluralism, adopting various investment arbitration options in its international investment agreements. This stance on arbitration reflects the lack of a regional standard for foreign investment protection and the difficulty of finding a genuine alternative path. In the absence of such an alternative, flexibility becomes the most pragmatic option. In this sense, unlike Brazil, which has its own model agreement and is an important political force in the balance of power in international investment law, Mexico is a rule taker state. Mexico; bilateral investment treaty; free trade agreement; Latin America; dispute settlement mechanism; international investment arbitration; pluralism; rule taker.

STUDY ON THE LEGAL ISSUES OF INTERNATIONAL ARBITRATION INSTITUTION SETTLING IN CHINA

The international arbitration institutions settling in China is not only the need of building an attractive arbitration seat in China, but also the need of facilitating dispute settlement between Chinese and foreign parties, promoting the development of arbitration institutions and serving international trade and investment. Due to China's previous legislative and judicial practices, international arbitration institutions are faced with difficulties such as uncertain institutional identification, limited business scope and unclear award recognition and enforcement. However, as China's ascension arbitration credibility construction, China is taking active measures in judicial, administrative and legislative aspect to clarify the legal status of international arbitration institutions, broaden the business scope, promote the validity of arbitration agreement determination, and clear the nationality of arbitration award to recognition and enforcement. These positive measures demonstrate China's friendly attitude of vigorously supporting arbitration, and create a good prospect for international arbitration institutions in China.

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.

Lex Mercatoria as Substantive Applicable Law of International Sale and Purchase Contracts

This study aims to analyze lex mercatoria as a substantive applicable law international sale and purchase contract. The research method used is a qualitative method. The research results show that international trade activities often lead to disputes between the parties. And the choice of dispute settlement can be made either in court or in arbitration. There are two types of law that apply and are used in international arbitration, namely arbitration procedure law and arbitration substantive law. The substantive law is in the form of a country's national law and/or international conventions related to contracts and lex mercatoria. Lex mercatoria is the law of traders derived from trade usages and general principles of law. CISG can be classified as one of the lex mercatoria because there are principles that generally govern sales and purchase contracts which are referred to as the general principles of international contract law so that the general law principles in this contract are applied as substantive law by arbitrator judges in deciding contract disputes, international sale and purchase in international arbitration.

Past and Present? Greece in International Arbitration in the Twentieth Century

Abstract During the twentieth century, international arbitration became an integral part of interstate dispute resolution. Greece, a small state with no particular influence, also rushed to utilize arbitration to pursue its interests, resolve intense disputes and ultimately stabilize its position in the international system. This article will discuss if and how lower-level settlement procedures can impact smaller countries’ higher political strategy, exploring Greece’s recourse before the Mixed Arbitral Tribunals, the League of Nations and the Permanent Court of International Justice. Athens’ efforts to pursue its citizens’ war claims against West Germany after World War II will be examined, along with the role international arbitration could potentially play today in resolving Greece’s war claims against the Federal Republic of Germany, which Athens raised immediately after the 1990 reunification and continue to encumber bilateral relations. Ultimately, Greece’s experience will exemplify the direct impact arbitration procedures can have on international relations.

THE ROLE OF THE STATE IN INTERNATIONAL INVESTMENT ARBITRATION IN CONNECTION WITH THE ARMED CONFLICT

This article deals with the characteristics of using international investment arbitration as a mechanism for obtaining redress for damages caused during Russian aggression. Taking into account certain shortcomings of this legal remedy, the author highlights the State's role in leveling issues related to arbitration costs and protecting the rights of small and medium-sized enterprises. The article contains an analysis of the subrogation clause in the Agreement between the Government of the Russian Federation and Cabinet of Ministers of Ukraine on encouragement and mutual protection of investments of November 27, 1998, as well as an alleged procedure for its implementation. The existing practice of horizontal investment lawsuits is also disclosed as an alternative. The author cites the existing practice of interpreting the Agreement on the example of investment arbitrations in the so-called “Crimean cases,” demonstrating its relevance for subjects in the newly occupied territories. The article includes a summary of the advantages and disadvantages of international investment arbitration in the Ukrainian context and the author's recommendations on non-standard methods of obtaining compensation in the context of an international armed conflict.

Требования к международному коммерческому соглашению, заключенному в результате медиации: Сингапурская конвенция и российское законодательство

Once Singapore Convention on Mediation was adopted in 2018 and it has become possible to facilitate performance of the international commercial settlement agreements resulting from mediation abroad interest to mediation as a means of settlement of the international commercial disputes started to grow. In the eyes of the lawyers such mediated settlement agreements have much in common with the awards of international commercial arbitration, the most popular dispute resolution tool for disputes arising during foreign trade activities. Today in the age of turbulence and chaos mediated settlement agreements allow to satisfy the needs of business in the expediate settlement of foreign trade conflicts on the terms acceptable for the parties and to obtain guarantee of quick, simple and cost-efficient performance of the agreements reached. For this reason, it is worth considering adjustment of the internal laws to the best world practices. Article considers the means available under the Russian laws to make mediated settlement agreement enforceable and the tests it would have to undergo on the way. Deeming it advisable for Russia to join the Singapore convention on mediation, author concludes that it is necessary to prepare the internal legislation for such step as it was done, e.g., in Belorussia. Possible solution could consist either in introduction of a special chapter on granting relief in connection with the performance of international commercial mediated settlement agreements corresponding to the provisions of the Singapore Convention on mediation and the UNICTRAL Model law on mediation in the Russian Code of Procedure with Commercial Courts or in the adoption of a separate law on international commercial mediation. Since international commercial arbitration and the internal arbitration are regulated in Russia by two separate laws taking into account the special features of the disputes resolved, it would be logic to keep dualistic regulation for mediation as well.

MANDATORY BINDING DISPUTE RESOLUTION IN THE BASE EROSION AND PROFIT SHIFTING (BEPS) TWO PILLAR SOLUTION

AbstractBinding taxpayer-initiated international dispute resolution has traditionally played a minor role in the international tax system. Despite being long pursued by corporate interests and increasingly accepted by developed countries, international tax arbitration has remained less developed and less respectful of private interests than investor–State arbitration. The binding multilateral dispute settlement endorsed by over 130 countries as part of the Organisation for Economic Co-operation and Development's Two Pillar Solution to issues raised under Action 1 of the Base Erosion and Profit Shifting (BEPS) project marks a change and is noteworthy at a time when some States are reconsidering their consent to the international adjudication of trade and investment disputes. The design of international dispute settlement in the Two Pillar Solution, and the focus on the protection of multinationals from juridical double taxation, displays little appreciation of the experience with dispute settlement in international trade and investment over the past two decades.

Implementing Pillar Two: Potential Conflicts with Investment Treaties

A key objective of pillar two is to coordinate a minimum 15 percent tax on the GloBE income of certain in-scope multinational enterprises. This objective has been driven by the Organisation for Economic Co-operation and Development and focuses on global cooperation and model rules to calculate and collect the proposed tax. Tax is also a key driver in investment decisions. By design or default, the pillar two rules will clash with the typical tax incentives offered by countries to attract foreign direct investment, including tax holidays, lower tax rates, exemptions, and accelerated depreciation regimes. Often these tax incentives are offered in investment treaties. These agreements offer a win-win solution in that they set out the minimum protections that investors may rely on when making an investment in the host state, backed up by the direct remedy of binding international arbitration if those protections are not provided. For the host state, the protections provided by an investment treaty encourage inbound cash flows, and for the investor's home state, they offer the hope of repatriated profits. Although no precise numbers can be offered, clearly the tax benefits provided by investment treaties will be affected by the pillar two rules. This paper outlines some of the potential conflicts between pillar two requirements and the protections provided in investment treaties. It also offers some preliminary solutions.

중재조항의 물적 관할 제한과 관련된 포괄적 보호 조항 및 최혜국대우조항 적용에 관한 연구

Purpose: This study analyses the umbrella clause and the most favored nation clause by focusing on A11Y Ltd. v. Czech Republic issued under international commercial arbitration.
 Research design, data, and methodology: Typical case analysis deals with the issues surrounding the selection of applicable cases for international commercial arbitration.
 Results: Under the arbitration clause, which explicitly excludes disputes regarding the FET clause and the non-discrimination clause, it is not acceptable to invoke both clauses through an umbrella clause.
 Conclusions: Above all, from the facts of this case, it is thought that even if the jurisdiction is expanded, difficulties accompany the complete citation of a claim on the merits. Regarding a non-discrimination obligation, the Tribunal denies the distinction of administrative rules in the context of expropriation. On the other hand, the inappropriate behavior of the Labor Bureau is acknowledged, and there is room for violation of FET or the obligation to prohibit investment damage.

재생에너지 관련 잠재적 국제투자중재에서 원주민들의 권리보호 : 원주민들의 비분쟁당사자로서의 역할을 중심으로

기후변화가 심해짐에 따라 재생에너지의 이용은 지속적으로 증가해 왔으며 이에 따라 관련 국제투자 및 투자에 관한 국제분쟁 역시 증가해왔다. 이와 함께, 많은 종류의 재생에너지가 원주민들이 거주하고 있는 토지에서 개발되어왔고 특히, 이 과정에서 이들의 권리침해가 발생되어 왔다는 점에 착안하여 본 논문에서는 아직 발생한 적은 없으나 원주민들의 토지에서 수행된 재생에너지 개발사업이 이들의 권리를 침해하고 이에 따라 이들이 거주하고 있는 투자유치국정부가 관련 조치를 취할 경우 이들간에 발생할 수 있는 잠재적 국제투자중재에서 원주민들이 어떻게 이들의 권리를 보호할 수 있을지에 대해 논의를 진행하였다. 즉, 상기 언급한 것처럼 원주민들은 당해 소송에서 분쟁당사자로서 참가할 수 없기 때문에 비분쟁당사자로서 자신들의 권리를 주장해야 하므로 비분쟁당사자에 관련된 국제투자협정상 규정 및 관련 판례들을 분석하였고 이를 토대로 잠재적 국제투자중재에서 어떻게 무슨 권리를 주장해야 하는지 및 이들의 보다 적절한 권리보호를 위한 비분쟁당사자 체제의 개선방안에 대해 제시를 하였다.

자유무역협정상 물품무역의 수입국 조치와 관련된 투자협정중재에 관한 고찰

Purpose: This study analyzes issues over the national treatment clause, the most favored nation clause, and jurisdiction in international commercial arbitration under free trade agreements. Based on these clauses, implications after analyzing Vento v. Mexico are presented.
 Research design, data, and methodology: Adopting the literature research method, this study utilizes major related papers and Internet data.
 Results: For discriminatory application of an import restriction, an investor would need to identify other investors using the same trade agreement on which it is based, and must demonstrate that the import restriction does not likewise apply to these other investors. However, in this case, there is also a limitation in that it is more difficult for an investor who uses a unique business model that other investors do not use, to make a claim based on discriminatory treatment.
 Conclusions: The claimant in this case filed for ① discriminatory treatment by the Mexican government (breach of NT/MFN) and ② MST breach (lack of due process, etc.) by the Mexican government, but all of them were rejected.