International Commercial Arbitration Research Articles (Page 1)

Over the past two decades, jurisdictions in the Gulf Region, Asia and Europe have established special judicial bodies to settle international commercial disputes. Commonly referred to as “international commercial courts” these bodies are distinct from other (local) courts in that they display innovative features with regards to their institutional and procedural design which are geared towards greater internationalization. However, not all of these courts have turned out to be a resounding success. A case in point are the international commercial courts – or, more precisely: the international (commercial) chambers – that have been established at regional courts (Landgerichte) in Germany during the past 15 years: They have not managed to attract a large number of cases, most likely because they did not offer enough benefits to induce parties to change their dispute resolution habits. In fact, since the overall legislative framework remained unchanged, they were bound by the general rules and regulations of German law, notably the Courts Constitution Act (Gerichtsverfassungsgesetz – GVG) and the Code of Civil Procedure (Zivilprozessordnung – ZPO). The newly founded chambers could, therefore, only make use of the leeway that was granted by these rules and regulations. And the leeway was certainly limited. The use of English as court language, for example, was confined to the oral hearing and the submission of English-language evidence whereas all party briefs as well as all court orders, the records of the proceedings as well as all judgments had to be made in German. Moreover, there was no certain prospect for an English-language second and third instance. However, a new Law adopted by the German Federal Legislature in late 2024 gives hope that things are about to change. Called “Law on the Strengthening of Germany as a Place to Settle Disputes” (Justizstandort-Stärkungsgesetz) the new Law amends both the Courts Constitution Act and the Code of Civil Procedure with the aim of making German courts more attractive places to settle international commercial disputes and in the hope of improving Germany’s position vis-à-vis recognized litigation and arbitration venues, notably London, Amsterdam, Paris and Singapore. Specifically, it allows (certain) courts to conduct proceedings completely in English. And it allows the German federal states (Bundesländer) to establish specialized “commercial courts” that may hear certain high-volume (international) commercial disputes in an arbitration-style fashion. In the article we explore whether the new Law will make German courts an attractive alternative for “big business” – and a serious competitor for foreign courts and international commercial arbitration. To this end, we contextualize the new German Law by giving an overview of the German civil justice system, the current German dispute resolution landscape and the global trend to establish specialized courts for international commercial disputes (part II.). We move then on to discuss the details of the new German Law (part III.) before we offer some thoughts on its likely impact on the dispute resolution landscape in Germany and beyond (part IV.). All in all, we show that the new Law introduces welcome innovations that will actually improve the framework conditions for the settlement of international commercial disputes in Germany. However, we also demonstrate that shortcomings remain that will prevent German courts from becoming serious competitors for leading international commercial courts as well as international commercial arbitration.

The Three Ages of International Commercial Arbitration, Mikaël Schinazi

Abstract Rules in international arbitration can have various characterisations. Some are ‘substantive’ and others ‘procedural’, determined by direct party agreement or subject to tribunal discretion. Given that the proper meaning of these concepts tends to be conflated and interpreted without rigour, this paper argues that, subject to contrary mandatory provisions in the leges arbitri and in the absence of direct party agreement on procedure, tribunals should follow the procedure-substance characterisation found under the applicable substantive law selected by the parties. If substantive law deems a rule to be procedural, tribunals are under no duty to apply the rule. Instead, tribunals can rely on their discretion to determine the appropriate course of action. Conversely, if substantive law characterises a rule as substantive, tribunals must apply the rule, despite the scope for challenges to arbitral awards on grounds of errors of law is minimal. In doing so, the article distinguishes how the issue is approached in arbitration compered to general private international law and acknowledged that the true meaning of ‘procedure’ and ‘substance’ requires a principled case-by-case analysis.

Abstract This article tackles the emergence and progressive acceptance of third-party funding (TPF) in arbitration across Arab countries within the MENA region, where civil law systems and Islamic Shariaa principles converge. While legislative regulation of TPF remains largely absent, notable arbitral institutions – including the Cairo Regional Centre for International Commercial Arbitration (CRCICA) in Egypt, the Dubai International Arbitration Centre (DIAC) and the Abu Dhabi International Arbitration Centre (arbitrateAD) in the United Arab Emirates, the Saudi Center for Commercial Arbitration (SCCA) in the Kingdom of Saudi Arabia, and the Qatar International Center for Conciliation and Arbitration (QICCA) in Qatar – have revised their arbitration rules to include express provisions governing TPF. These developments reflect a regional trend towards procedural transparency, primarily through the disclosure of funding arrangements and funders’ identities, in order to avoid conflicts of interest and preserve the arbitrators’ impartiality and independence. Furthermore, the article sheds light on the nature of TPF agreements and assesses their compatibility with the principles of Islamic Shariaa, concluding that when properly structured, TPF agreements align with the overarching Islamic Shariaa principles of justice and fairness. Accordingly, the reliance on TPF in the MENA region is likely to play an increasingly significant role in the region’s dispute resolution landscape, and particularly in arbitration.

This article analyses the main obstacles to the enforcement of International Commercial Arbitration (ICA) awards in Uzbekistan. Although arbitration is a developing institution in the country, procedural gaps, inconsistent legislation, lack of electronic classification, and limited international cooperation hinder the effectiveness of enforcement. Special attention is given to the ambiguity surrounding the concept of public policy (PP), which poses risks of subjective interpretation by national courts. The study suggests reforms for unified procedures, clearer legal definitions, and more structured data collection to strengthen ICA enforcement mechanisms.

Article 12 of the Anti-Foreign Sanctions Law of the People's Republic of China grants Chinese citizens and organizations the right to seek judicial remedies by initiating legal proceedings in a People's Court when their rights and interests are infringed upon by discriminatory restrictive measures imposed by foreign states. Although the law stipulates that affected parties may bring an action for recovery under anti-sanctions, the provision's general and abstract nature presents certain issues in its practical application that further analysis and discussion are needed. Moreover, such litigation is not the sole means of recourse available to the parties; in practice, they may also agree to submit their disputes to arbitration. However, given that sanction measures often implicate public interest and national sovereignty, uncertainty exists as to whether an arbitral tribunal may, according to an arbitration agreement, adjudicate such disputes. With neither current international law nor domestic legislation offering explicit guidance on this conflict, this paper argues that in instances where a conflict arises between litigation jurisdiction and an arbitration agreement, precedence should be given to litigation jurisdiction. This approach facilitates the convenient resolution of disputes in a manner consistent with the underlying objectives of anti-sanction recovery actions.

Confidentiality in international commercial arbitration remains one argument made in support of arbitration. However, on careful analysis, some jurisdictions do not recognize an implied right to confidentiality in arbitration, notwithstanding people’s varying perceptions. The idea of privacy has been distinguished from the idea of confidentiality in arbitration. Therefore, while an arbitration hearing may be held privately, it does not necessarily mean that every element of such arbitration is impliedly confidential. As such, some elements of an arbitration may be disclosed, notwithstanding when such arbitration has been held in private. On the flip side, while confidentiality cannot always be implied from every ‘private’ arbitration, the privacy of such arbitration shields some of the elements of the arbitration from the eyes of the public. Therefore, it reinforces the very idea of confidentiality in arbitration. In this article, the authors make a case for less confidentiality and greater transparency in international commercial arbitration involving state parties while taking a cue from the decision of the English Court in The Federal Republic of Nigeria v. Process and Industrial Developments (P & ID) Limited.

With the widespread application of artificial intelligence technologies such as blockchain and big data technology, the field of international commercial arbitration is experiencing profound revolutions. The utilization of artificial intelligence in this field not only has acted as an important role in completing repetitive and mechanical basic tasks like drafting arbitration agreements and writing hearing transcripts. Instead, it is now playing a significant role in assisting with case adjudication. artificial intelligence offers positive impacts by enhancing arbitration efficiency, improving arbitration transparency, and reducing arbitration costs. However, it also has issues such as ethical risks, potential leakage of parties' personal information, weakening the "subjectivity" of arbitrators, and reducing arbitration accuracy. This paper proposes targeted measures to fully protect the personal information security of arbitration parties through legal regulations and technological measures, while consistently emphasizing the "subjectivity" of arbitrators. It uses artificial intelligence as an auxiliary tool in decision-making, enabling arbitrators to maximize arbitration efficiency while pursuing "substantive justice."

International arbitration has emerged as one of the most popular dispute resolution procedures for international investments and commercial contracts in recent years. In particular, a growing number of commercial disputes have been settled through international arbitration in every corner of Global Economy.

Despite being part of Australian law for more than 30 years, the United Nations Convention on Contracts for the International Sale of Goods (‘CISG’) has not secured the internationally minded interpretation that CISG art 7(1) requires. Australia’s international commercial arbitration (‘ICA’) laws, however, are routinely approached by Australian courts with an internationalist perspective, as their own interpretative rules require. It is tempting to conclude that Australia’s approach to interpreting its ICA laws is transferable to the CISG context. In this article I address a previously unexplored nuance affecting that conclusion. Australian courts routinely accept Singaporean, Hong Kong and New Zealand interpretative influence concerning ICA laws. In the CISG context, however, significantly less influence from those jurisdictions exists. That being so, I explore how Australia’s courts might better apply the CISG in an internationalist manner. First, I recommend that Australia’s courts emphasise to practitioners the need to consider the CISG’s application and its internationalist interpretation requirements. Second, I recommend that Australian courts use the amicus curiae procedure to solicit third party submissions addressing the CISG’s interpretation. Both techniques are applied by foreign courts in the ICA context and would assist Australian courts in discharging their CISG art 7(1) obligations.

Law No. 30 of 1999 concerning Arbitration and Alternative Dispute Resolution regulates the arbitration process in Indonesia, but it does not yet provide an adequate system regarding the evidentiary mechanism. One of its main weaknesses is the absence of authority for either arbitrators or courts to compel third parties to present evidence or give testimony, which may result in arbitral awards that are incomplete and/or do not reflect justice. Therefore, a mechanism is needed to assist in the collection of evidence during the arbitration process. Based on this legal issue, this research aims to offer a normative solution to this weakness. The research method used in this study is legal research, with the approaches employed being the Statute Approach and the Conceptual Approach. The conclusion drawn from this study is that one of the applicable solutions to address the weaknesses in the evidence collection system in arbitration is to adopt Article 27 of the UNCITRAL Model Law on International Commercial Arbitration into the national legal system. This provision allows courts to assist in the collection of evidence within certain limits without interfering with the independence of arbitration. Thus, this adoption is expected to strengthen the legitimacy and effectiveness of arbitration in Indonesia, as well as increase business actors’ confidence in this forum as a fair and efficient alternative dispute resolution mechanism.

Abstract Transparency has been a crucial element in the evolution of lex mercatoria from its medieval origins to the contemporary lex informatica in cyberspace. The ongoing development of the medieval lex mercatoria underscores the significance of making arbitration reasoning publicly available, for two main reasons. Historically, medieval merchant courts did not favour strict confidentiality of decisions, and the modern requirement for safeguarding party, community, state, and global legitimacy in lex mercatoria also advocates for enhanced transparency in international commercial arbitration. The current transparency framework in investment arbitration and domain-name dispute resolution may serve as a roadmap for achieving a balance between transparency and confidentiality in international commercial arbitration. A restructuring of the transparency mechanism for such arbitration should focus on a mandatory system of publishing redacted arbitral awards.

In the context of the increasingly complex global trade system, international commercial arbitration, as an important mechanism for resolving cross-border disputes, has become a core factor affecting the effectiveness and enforcement of arbitration based on the issue of "nationality" in its rulings. The aim is to systematically explore the nationality recognition standards and legal application issues of commercial arbitration awards in international trade, filling the gap between the current theoretical system and practical mechanisms. Select relevant rules of international arbitration institutions (such as ICC), Chinese foreign-related arbitration cases, and major international conventions as samples, focusing on how the nationality of arbitration awards affects their arbitrability, fairness, and enforceability. By comparing and analyzing the international theoretical foundation and legal practices at home and abroad, combined with case analysis and treaty provisions research, the conflict and reconciliation between the "statutory jurisdiction of arbitration" and "party autonomy" in nationality determination are extracted. Research has found that nationality not only determines the procedural law applicable to arbitration awards, but also directly affects the international recognition and enforcement of the awards. Although China actively adheres to international rules, there are still institutional ambiguities and legislative lag in the nationality restrictions for arbitrators and the nationality selection mechanism for arbitration awards. In theory, it deepens the legal construction of "arbitration nationality" and expands the application boundaries of international commercial arbitration; In practice, it provides reference for China to build a more neutral and internationally recognized arbitration system. However, the complexity of the parties' game and multiple nationality conflicts in arbitration practice remains a challenge, and in the future, further efforts should be made to promote the international unification of arbitration nationality rules and the localization reform of Chinese arbitration law.

The law of arbitration in India has undergone significant transformation, evolving from a rigid, court-centric dispute resolution mechanism to a more liberalized and party-autonomous process in tune with international standards. Rooted in the Arbitration Act of 1940[1], the legal framework has been substantially overhauled by the enactment of the Arbitration and Conciliation Act, 1996[2], modelled on the UNCITRAL Model Law. Subsequent amendments in 2015, 2019, and 2021 have sought to address procedural inefficiencies, institutionalize arbitration, and promote India as a hub for international commercial arbitration. However, despite progressive reforms, the Indian arbitration regime continues to grapple with several challenges judicial interference, delays in enforcement, lack of institutional infrastructure, and inconsistency in arbitral jurisprudence.

The study investigated what stop Pakistan from establishing an internationally respected commercial arbitration center, despite being part of the 1958 New York Convention. The study looked at Pakistan’s arbitration system next to mature arbitration systems in Asia, trying to understand legal, institutional and procedure issues, monitor court involvement trends and find out about the numbers of specialized arbitrators and how foreign investors view the Pakistani system. Questionnaires were used to survey 50 legal professionals (30 judges and 20 lawyers) in Pakistan’s legal centers to study their views on the arbitration system, its obstacles and possible reforms. All participants agreed that Pakistan’s arbitration system is not up to international standards because of courts interfering excessively (mentioned by 83.3% of judges and 75% of lawyers). The respondents strongly believed in the benefits of institutional reforms such as setting up arbitration centers (100%), offering specialized judicial training (100%) and working with well-known bodies such as the ICC and LCIA (100%). Lack of disagreement in the meetings revealed that systemic change was resisted. Many pointed out that Pakistan has old and weak laws, with few enforcements and said it could benefit economically from becoming an arbitration hub that brings in more foreign capital and eases the burden on courts. It was recommended that to establish the international commercial arbitration center in Pakistan. Foremost in the study’s conclusions was the reason that legal updates and improved capacity are needed at the national level for Pakistan to become a major place for arbitration.

Abstract The token economy is rapidly advancing and if fully realized will change the financial sector significantly. This paper will examine the development, application and use of tokens, and blockchain technology along with their impact to the rules of evidence in international commercial arbitration. The technology is formidable and will require new skills. It calls on arbitration institutions, as a starting point, to develop guidance notes for the technical application of blockchain and tokens used in evidence. This paper highlights how a recent addition to the legal framework is the Token Service Agreement, which incorporates an arbitration clause and the use of blockchain. This, along with the many other agreements that have recently been developed, for instance, in cybersecurity and data, will all be important components to the evidence that an arbitral tribunal will need to consider. More specifically, expert evidence is and will become crucial to being able to trace the actual dispute of the token (its supporting technology) and blockchain. The paper concludes calling for further research to be undertaken about how blockchain and tokens will need to be considered as evidence in international commercial arbitration.

The emergence of the Russia-Ukraine conflict, therefore presents seismic movements in the global politics, leading towards economic sanctions against Russia as a prominent mechanism in the conflict and diplomatic pressure among many. The sanctions would not only restrict economic activities in and out of Russia but also draw attention to the security of international commercial norms and dispute resolution mechanisms. Justifiably, commercial economic sanctions have recently played a growing critical role in transnational trade. The enterprises that come under sanctions face the dilemma of how to fulfill the contracts and agreements while under the sanctions. This paper tries to raise and discuss the issue of the validity of the international commercial arbitration clause and the arbitrability of the disputes in the background of the economic sanction. It will study through a case analysis the disputes related to the validity of the arbitration clause and the arbitrability of disputes under sanctions. A further approach of comparison is used to look into the different stands taken by diverse authorities on these issues. The work finds that though economic sanctions prove some difficulties, the independence of an arbitration clause, as well as the arbitrability principles, still continue to get wide support. In sanction conditions, arbitration is still an effective and proper method of resolving disputes.

International Commercial Arbitration is the most favoured method for resolving international commercial disputes across the globe. Parties to international commercial contracts choose arbitration due to fear of the judiciary involvement. However, Judicial Intervention may arise in various areas of international commercial arbitration. The paper covers analysis of Indian arbitration law, judicial trends and interpretation of law by the courts. This research paper deals with the intricacies of Judicial Intervention in international commercial arbitration. This paper examines the complicated dimensions of balancing Judicial Intervention with party autonomy. The analysis circumscribes the different approaches adopted by the Indian courts, considering the effect of varying interpretations in international commercial arbitration. The paper further examines various judgments in light of emerging trends in international commercial arbitration. The analysis concludes that judicial intervention may be necessary to ensure uniformity, fairness, and justice. Although Judicial Intervention has been significantly reduced in India over the past ten years, it remains a contentious feature of Indian arbitration law.

Transnationalization is characterized by the existence of legal norms and rules that are universal, that is, common in content to most legal orders. Based on a historical review, analysis of current regulations in the area of regulation of cross-border commercial relations and statistics on the consideration of disputes in courts and in international commercial arbitration, it is shown that transnationalization is a key characteristic of modern international commercial law. Transnational are the norms and rules that constitute international commercial law. This state of legal norms and rules in international commercial law over the past 30 years has been ensured primarily through the activities of international organizations. Transnational norms and rules are mainly included in documents that do not have binding legal force. At the same time, such standards have a noticeable legal impact simultaneously in several jurisdictions and in different legal situations.

In the context of globalization, cross-border commercial disputes have become increasingly numerous and complex. With the emergence of international commercial courts, it has become necessary to study new mechanisms for dispute resolution. This research focuses on international commercial (hybrid) courts as specialized institutions for resolving cross-border commercial disputes. The objective of this study is to systematize and identify distinctive features of hybrid courts. To achieve this the paper provides, a comparative legal analysis of international dispute resolution mechanisms, examination of the conjunction between international commercial courts and national legal systems, addressing issues of res judicata effects, and investigating the objectives behind the establishment of hybrid courts. The research is based on methods of synthesis and analysis alongside comparative legal study, doctrinal legal methods, and historical methodologies. Statistical data from arbitration and judicial institutions spanning 2012-2025 provided the empirical foundation for this study. The novelty of this research lies in its systematic and comparative analysis of international commercial courts, identifying their commonalities and differences compared to international commercial arbitration and traditional national courts. The legal nature of international commercial courts was substantiated, along with an examination of the political and economic aims underlying their establishment. Additionally, the issue of legal intervention by common law systems into civil law jurisdictions was explored. The research concluded that international hybrid courts are unique institutions of national law containing international elements; jurisdictional peculiarities and legal policy significantly influence the objectives of their establishment; certain hybrid courts substantially impact the legal systems of their host jurisdictions; some international hybrid courts facilitate the exportation of national law; and when establishing hybrid courts, in order to promote national interests and attract foreign capital Russia should consider the experiences of countries that successfully avoided legal intervention.