International Commercial Arbitration Research Articles

The Role of International Commercial Arbitration in Resolving Disputes Arising from the DBOT Contract

The International Federation of Consulting Engineers (FIDIC) is a prominent contributor to activating the role of arbitration in resolving disputes as one of the means resorted to instead of the judiciary and what arbitration is characterized by characteristics that facilitate the parties to resolve the dispute presented to them after exhausting all friendly means from the Dispute Resolution Council and other friendly means, which made resorting to inevitable arbitration in investment contracts and the DBOT contract represents one of the contractual models issued by (FIDIC) and the most appropriate for investment contracts, especially if the investor is foreign in his contract with the state or one of its public institutions, as the investor seeks to Preserving his rights by stipulating certain conditions that protect him from being subject to the law or national judiciary of the state party to the contract. Perhaps the FIDIC model (DBOT) has taken this issue into account by including a condition requiring the parties to resort to arbitration to settle disputes between them if other amicable methods fail to resolve the dispute, which requires research into the subject to clarify the definition of Arbitration, its types, and the procedures included in the Golden Contract Model (DBO) in considering the dispute until the issuance of the arbitration decision, compared to what is included in the standard documents issued by the Iraqi Ministry of Planning based on Circular No (4/7/4185) dated (24/2/2016) and other legislation related to the research topic.

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.

The Arbitration Agreement from the Perspective of Qatari Law

Abstract The arbitration agreement is the first stage of arbitration and the basis of the commitment of the parties to an arbitration. Arbitration is consensual by nature and cannot proceed without such an agreement. If there is no agreement to arbitrate, the disputing parties have no choice but to resort to the state courts to resolve their dispute. In this regard, the importance of the arbitration agreement becomes evident, as it requires several formal and substantive conditions for it to be valid. The consequences of the validity or otherwise of the arbitration agreement may include lack of jurisdiction, the non-extension of the arbitration agreement to third parties, and the ultimate invalidity of the arbitral award. Accordingly, this research will be dedicated to studying the arbitration agreement and its implications as provided by Qatar’s Arbitration Law No. 2 of 2017. The study will also analyze court judgments related to this agreement and its implications, both within Qatar and in other Middle-Eastern states that have adopted the uncitral Model Law on International Commercial Arbitration.

Article: Generative Artificial Intelligence and Legal Decisionmaking

This article explores the transformative impact of generative artificial intelligence (GenAI) on legal decision-making processes. It also examines disclosure obligations and the challenges AI-assisted decisions pose in litigation and arbitration.A case study using ChatGPT as arbitrators in the Willem C. Vis International Commercial Arbitration Moot provides practical insights into AI’s potential and limitations in arbitral decision-making. The experiment highlights key learnings about technology constraints, due process concerns, and the enforceability of AI-assisted decisions.The article concludes with reflections on integrating AI into legal frameworks, emphasizing the need for updated regulations and best practices to ensure transparency, fairness, and accountability in AI applications within the legal domain.

Arbitration and the Rule of Law: Preserving, Protecting and Proportionality

The importance of international commercial arbitration today cannot be overstressed. Arbitration offers parties in cross-border disputes a neutral and private forum to resolve their disputes, therefore avoiding potentially partisan or inefficient court litigation systems. In arbitration, laws and rules may be drawn from a variety of sources, such as national laws, international treaties, and institutional rules which are based on the principle of the rule of law and are intended to ensure a fair and just conduct of dispute resolution. This thesis will discuss the importance of the rule of law in arbitration, evaluating how arbitration already defends the rule of law and some thoughts about balancing the rule of law in arbitration to avoid an antithetical outcome.

International commercial arbitration in Ukraine under martial law

It is indicated that International Commercial Arbitration is one of the most effective ways of resolving disputes between participants in international trade, ensuring speed, flexibility and neutrality of the process. However, the activity of arbitration in Ukraine faces a number of new challenges due to the introduction of martial law as a result of large-scale aggression. The hostilities led to significant disruptions to normal economic activity, including making it difficult to enforce contracts, access to justice, and enforce arbitral awards. This raises questions about the ability of arbitration to function effectively in such extraordinary circumstances. The topic is extremely relevant in today’s environment, where Ukraine faces large-scale military aggression that significantly affects all spheres of economic life, including international trade and legal relations between business entities. The article examines the legal and practical aspects of international commercial arbitration during martial law, particularly the impact of military operations on arbitration procedures, the possibility of enforcing arbitral awards, and the problems of their enforcement in a limited legal and economic environment. The main focus is on how arbitration institutions in Ukraine, in particular the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry, are adapting to the new realities. The author also considers the issue of enforceability of arbitral awards in the light of military operations, sanctions, economic restrictions, and challenges for the Ukrainian legal system. The challenges related to the organization of the arbitration process, such as logistical difficulties, limited access to resources and documents, as well as the application of sanctions against the parties to the dispute, are explored. Special emphasis is placed on the possibilities of conducting arbitration hearings in a remote format and the use of modern technologies to ensure the continuity of the process under martial law. The article also examines the prospects for adapting arbitration to the new realities, including the possibility of filing claims for compensation for damages caused by military operations. The study analyses the prospects for the development of international arbitration in Ukraine, including the use of digital technologies, online hearings, and adaptation of the arbitration process to the challenges of wartime. Particular attention is paid to the opportunities for Ukrainian entrepreneurs to protect their rights through arbitration in international disputes, including the issue of compensation for damages caused by military actions.

تسوية المنازعات في القانون التجاري - على ضوء القانون رقم 95.17

Mechanisms for settling commercial disputes have become one of the manifestations of legal and economic thinking at world level, a desired tool for regulating and stimulating national and international trade, and an important and essential factor in increasing the flow of investment and alleviating the burden on the national judicial system, prompting the various countries - at the highest level - to attach great interest to this peaceful means. In this respect, the high speech of His Majesty King Mohammed VI on the occasion of the opening of the judicial year on 29 January 2003 in Agadir affirmed the following: ‘.... Thus, in accordance with Our firm desire to continue working to promote investment and in application of Our directives set out in the letter We sent to Our Prime Minister to this effect, we invite Our Government to continue its efforts to modernise the justice system, by rationalising work, simplifying procedures and ensuring the widespread use of information technology. It is also necessary to diversify the procedures for the consensual settlement of disputes that arise between partners in commercial transactions, by proceeding, with all due speed, to draw up a draft law on national and international commercial arbitration, which will enable our judicial system to meet the requirements of globalisation and economic competitiveness, and to help attract foreign investment’. In his speech on the occasion of the anniversary of the Revolution of the King and the People on 20 August 2009 in Tétouan, His Majesty added that: ‘...At the same time, alternative dispute resolution methods such as mediation, arbitration and conciliation should be developed, alternative sentences should be applied and local justice should be reviewed....’. Then the speech of 14 October 2022, which stated: ‘Today, we are banking on productive investment as an essential lever for reviving the national economy and anchoring Morocco in promising sectors’.

Investigating employment of AI arbitrators in International Commercial Arbitration according to UNCITRAL Model Law (1985)

Investigating employment of AI arbitrators in International Commercial Arbitration according to UNCITRAL Model Law (1985)

Cross-cultural challenges in international commercial arbitration: Strategies for effective resolution

The purpose of the article is to determine the most effective strategic guidelines for the implementation of international commercial arbitration. The object of the study is international arbitration. The scientific task is to characterize which strategic guideline is the most optimal today. The research methodology involves the use of the even comparison method. As a result of the study, the most optimal strategic guideline for international commercial arbitration under the pressure of intercultural challenges was determined. In article we prove, that the strategies of Enhanced Cultural Training and Diverse Arbitrator Panels are considered the most effective for addressing cross-cultural challenges in international commercial arbitration for several compelling reasons. The study has a limitation by not taking into account all possible guidelines for development. In further studies, attention should be paid to taking into account the individual needs of specific countries of the world.

Conceptual model for strengthening international commercial arbitration in promoting cross-border trade and investment in developing economies

International commercial arbitration plays a crucial role in promoting cross-border trade and investment, particularly in developing economies where legal and institutional frameworks may be underdeveloped. This paper proposes a conceptual model aimed at strengthening international commercial arbitration to enhance its effectiveness in supporting cross-border trade and investment in these regions. The model addresses the unique challenges faced by developing economies, such as inadequate legal infrastructure, limited access to expertise, and the reluctance of foreign investors due to perceived risks. It emphasizes the need for capacity building, the harmonization of arbitration laws with international standards, and the creation of supportive legal environments that foster investor confidence. The model proposes the establishment of regional arbitration centers with a focus on developing economies, staffed by experts familiar with local contexts and international best practices. Additionally, it suggests the integration of digital technologies to streamline arbitration processes, reduce costs, and enhance accessibility. Collaboration between international arbitration bodies, governments, and private sectors is also highlighted as a critical component for the success of this model. Furthermore, the model advocates for the development of specialized training programs to build local expertise in arbitration and dispute resolution. By fostering a robust arbitration culture, developing economies can attract and retain foreign investment, thereby contributing to sustainable economic growth. This conceptual model seeks to bridge the gap between global arbitration standards and the specific needs of developing economies. By doing so, it aims to create a more conducive environment for cross-border trade and investment, ultimately contributing to the economic development of these regions. The paper concludes by outlining the potential impact of the model on improving investor confidence, reducing trade barriers, and enhancing the overall attractiveness of developing economies as investment destinations.

Obtaining evidence by the court at the request of international commercial arbitration

The article is dedicated to the study of the legal aspects of the procedure for obtaining evidence at the request of the International Commercial Arbitration Court through national courts. The procedure for submitting evidence in international commercial arbitration depends on the rules agreed upon by the parties in the arbitration agreement, as well as the applicable procedural norms of the arbitration institution (e.g., UNCITRAL Rules, ICC, LCIA, etc.). However, there are general principles and stages that are characteristic of most arbitration processes. The participation of national courts in relationships arising in connection with arbitration proceedings is implemented through the exercise of certain functions by the judiciary within the established scope of interaction. It has been determined that the primary goal pursued by the state, by granting national courts the authority to perform functions of assistance and control, is an interest in the implementation of the international commercial arbitration jurisdictional function. These circumstances ensure the effectiveness of arbitration proceedings and their attractiveness for the disputing parties. The general rules for submitting evidence and the powers granted to international commercial arbitration are highlighted, which include the authority to determine the admissibility, relevance, materiality, and significance of any evidence. It is concluded that the general rule is that the international arbitration court has the right to require the parties to submit evidence, as well as the right to request evidence from third parties, which the arbitration tribunal deems necessary for the resolution of the dispute. It is noted that an effective way to obtain the requested evidence is provided by Article 27 of the Law of Ukraine «On International Commercial Arbitration,» which allows the arbitration court to apply to the national court for assistance in obtaining evidence by way of a request for evidence. It is argued that the court’s assistance in obtaining evidence within the context of Article 27 of the Law of Ukraine «On International Commercial Arbitration» should only be considered in the possibility of requesting evidence by the court in accordance with Article 84 of the Civil Procedure Code of Ukraine. The request for evidence, as part of the institution of evidence preservation, in accordance with part 7 of Article 116 of the Civil Procedure Code, is not a form of court assistance to international commercial arbitration, which involves not only obtaining evidence relevant to the subject matter of the case and important for its resolution, but also primarily a way to prevent its potential loss in the future.

Constitutionalization of Arbitration

The number of arbitration cases handled by the Constitutional Court of the Russian Federation has steadily increased over the years. The evolution of social practices and judicial approaches to arbitration procedures has prompted the supreme body for judicial protection of the Russian Constitution to repeatedly review whether the legal concepts used to resolve civil disputes by arbitration courts and international commercial arbitrations align with the nation’s basic law. The outcome of this process is a set of legal principles that define the constitutional and judicial foundations of arbitration in Russia. The above trends have facilitated the use of the integrative concept of constitutionalism in arbitration. This study highlights the constitutionalization of both arbitration and its social application. From a standalone perspective, the problems of enhancing the constitutional and legal principles of arbitration were discussed, and the further progress of constitutionalism in Russian arbitration was predicted.

The Impact of International Commercial Customs (Lex Mercatoria) on International Commercial Arbitration

Lex Mercatoria play a crucial role in resolving disputes arising from international trade contracts before arbitration bodies, thus establishing them as an independent legal system capable of regulating international commercial relations. This legal characteristic imposes a certain obligation on various arbitration bodies to apply them to the disputes brought before them, either based on the parties' intentions or based on the legal force inherent in those customs. Consequently, this research examines the extent of recognition of the binding force of commercial customs before arbitration bodies, and based on that, it elucidates the authority of these bodies in applying them to international trade disputes. It is evident that these customs, due to their flexibility derived from the nature of commercial transactions and the customary practices of traders resorting to them, have become today an independent legal system that imposes itself on arbitration bodies even if the parties did not choose to apply those customs. This paper recommends the Jordanian legislator to explicitly adopt the application of these commercial customs in the Jordanian Arbitration Law texts, following the example of national and international comparative legislation.

„Brexito“ įtaka arbitražui: anti suit injunction ir investicinio arbitražo aspektai

Concentrating on a few material aspects in relation to the broader theme, the article analyses the effect of Brexit on international commercial arbitration. In particular, the piece firstly treats on the most recent UK Case Law in relation to anti-suit injunction – a phenomenon attributable to the Common Law in the context of the earlier European Union courts’ jurisprudence of the said instrument. Secondly, Brexit’s interplay with the ongoing global investment arbitration reform is considered. The article considers the globally recognised UN 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, on which Brexit had no adverse effect. When analysing the interplay between Brexit and the ongoing global investment arbitration reform, a particular regard is paid to the lack of investment arbitration provisions in the UK-EU Trade and Cooperation Agreement, as well as the termination of various relevant bilateral investment treaties. The article concludes that the influence of arbitration shall continue to grow, anti-suit injunction shall continue to be applied by the United Kingdom courts, and the Brexit’s interplay with the global investment protection overall and the investment arbitration in a particular reform is somewhat consistent.

Recent Amendment of Japanese Arbitration Law: A Bright Future Waiting for Japan?

With its 2023 Amendment, Japanese arbitration law has caught up with the global standard by primarily following the 2006 UNCITRAL Model Law. It is now clear what types of interim measures an arbitral tribunal seated in Japan may grant and under what circumstances it may do so. It is likewise now clear that orders for interim measures by arbitral tribunals will be enforceable in Japan. It is notable that, in certain circumstances, a Japanese court may grant a penalty payment order to enforce an arbitral tribunal’s order for interim measures. Undoubtedly, the amendment improves the effectiveness of international commercial arbitration in Japan. However, the means of enforcing interim measures issued by arbitral tribunals under Japanese law are limited. Arbitration users are, therefore, welladvised to consider seeking supporting measures from a national court. The 2023 Amendment will make Japan more attractive as a seat of arbitration. With the present reforms, Japanese arbitration stands a better chance of meeting the challenges of becoming a preferred arbitration seat in the face of stiff competition from other jurisdictions.

Юридическая хроника

In the September Chronicle, read comments on the criminal case of Pavel Durov in France, on the laws on amnesty for business crushing, on mining, on the introduction in the Criminal Procedure Code of an online form of meetings between a advocate and a prisoner, on changes in the foreclosure of a bankrupt’s only home, and on new approaches of the Supreme Court to the recognition and enforcement of international commercial arbitration awards.

The Optimization Path of China's International Commercial Arbitration Interim Measures System

China has now established a system of punitive damages, with the Civil Code as the main body, supplemented by other separate laws. This paper posits that the punitive compensation system addresses the shortcomings of the current private law system. With the blurring boundaries between public and private law, the punitive compensation system is more conducive to preventing social risks and providing comprehensive and adequate relief to the rights and interests of the infringed. The purpose of this paper is to analyse the historical origin and function of the punitive damages system, to summarize the process of its localised application in China, and then to analyse the status and existing problems in the application, and to put forward the improvement methods for the existing problems. The research value of this paper mainly includes two aspects: theoretically, it helps identify defects and deficiencies in the application of the punitive damages system; practically, it aids in reducing the judiciary's subjective arbitrariness.

Management of complex international commercial arbitrations: Insights and strategies

Management of complex international commercial arbitrations: Insights and strategies

Enforcement of Annulled Awards: A Balanced Approach

The enforcement of annulled awards has been an extensively debated topic in international commercial arbitration. The drafting history of Article V of the New York Convention (NYC) indicates that discretion was granted to Member States to refuse enforcement of annulled awards. However, most jurisdictions have either adopted a territorial approach or an internationalist or delocalized approach when it comes to annulled awards. In this paper, we argue that there are many flaws in the delocalized approach adopted by various jurisdictions. The territorial approach is also not feasible due to differing standards of enforcement in different jurisdictions. We bring forth a more balanced approach to the enforcement of annulled awards, which borrows from the stance of William W. Park on this issue. We argue that annulment decisions should be seen as akin to decisions of foreign jurisdictions. Further, we argue that the public policy ground could be used to create sufficient grounds for refusal of enforcement when necessary.

Custom as a Source of Russian Civil Law

In this paper, the author explores the historical significance and complexity of legal customs in the formation of legal systems. The paper analyzes the evolution of a custom from the primary sources of law in ancient societies to its modern status, where their role, although important, is subject to certain limitations, is analyzed.The paper highlights the understanding and application of the term «custom» in the context of modern civil legislation of the Russian Federation with an emphasis on the changes that occurred after the legislative reform of 2012. The study examines various fields of application of customs. Special attention is paid to the analysis of the role and place of international trade custom in civil law relations in the Russian Federation. Based on the opinions of experts and considering in detail the judicial practice of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation, the author concludes that international trade custom is a source of law, and it also falls under the concept of «custom» within the framework of Article 5 of the Civil Code of the Russian Federation. The study emphasizes the oral nature of a custom as a source of law, while not neglecting the importance of informal written forms such as Incoterms and UNIDROIT, as well as standard contracts Special attention is paid to the debatable topic of the relationship of customs with imperative and dispositive norms of legislation, as well as their place in the structure of the Civil Code of the Russian Federation. The author highlights the problem of insufficient legislative regulation of customs and calls for their further research and systematization as a critically important element of the legal system.