International Dispute Resolution Research Articles

Arabuluculuk ve Tahkimi Bir Arada Içeren Uyuşmazlık Çözüm Yolu

Parties may agree that in the case of a dispute they shall first try to settle this dispute through mediation and only if the mediation fails may they start arbitration proceedings. Under Turkish law, such multi-tier dispute resolution clauses are valid to the extent that the parties’ intention to resort to arbitration is clear. In the case where one of the parties starts the arbitration without first invoking the mediation, the arbitral tribunal should interpret the arbitration agreement to determine whether the mediation is a pre-condition of arbitration. If the mediation is a pre-condition, the tribunal should suspend the arbitral proceeding for the parties to invoke the mediation. However, if the mediation fails, then the tribunal will resume the proceedings. The question of whether or not the mediator should also act as the arbitrator in relation to the same dispute is highly debatable because of the risks imminent thereto. Under the ethics rules accepted in the USA, in Europe and in Turkey, the mediator may act as arbitrator only if the parties agree thereon in written form. When the parties consent to the mediator acting as arbitrator there is still the risk of the mediator-arbitrator having prejudices because of the information and documents disclosed during the mediation proceedings. Another question is whether the information or documents disclosed throughout the mediation are admissible evidence at the arbitral proceedings. However, the solution is clear: while the documents prepared for the sole purpose of settling the dispute at the mediation are inadmissible, the documents related to the facts are admissible. In November 2019, Istanbul Arbitration Center (ISTAC) introduced its own Med-arb rules, namely the ISTAC Med-arb Rules. They are the first published institutional Med-arb rules and reflect the best practices in international mediation – arbitration. I am confident that ISTAC Med-arb Rules will be welcomed in the field of international dispute resolution with great enthusiasm.

The Evolving Role of the Human Rights Factor within the State of Necessity Test in Investment Arbitration

The discussion on increasing the legitimacy of international investment law largely overlooks the potential of the state of necessity, as a circumstance precluding wrongfulness of States’ conduct under general international law, for the protection of human rights. The present article deals with the practice of international investment arbitration in cases involving Argentina in connection with its economic crisis of 1998–2001, in which it raised the necessity defense and appealed, inter alia, to human rights. The article concludes that, as a rule, the human rights factor did not play a noticeable role for resolving the relevant disputes. The human rights discourse either had no adequate place within the merits of the disputes, or the tribunals did not take the relevant arguments seriously. The human rights argumentation tried itself within different parts of the Argentina’s defense, including various elements of the necessity test, but without meaningful effect. The Award in the case of Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. The Argentine Republic has demonstrated the perspective of recognizing the significance of the human rights factor in the context of “the only way” element of the necessity test: this element can unleash the potential of human rights in the disputes involving the necessity-based defense and provide the tribunals with tools capable of taking human rights more seriously in the context of investment disputes concerning emergencies. The Urbaser Tribunal position is an evidence of the evolving and expanding role of the human rights factor within the necessity test but substantial clarification of this test at the doctrinal, practical and political level is still needed to increase the legitimacy of international investment dispute resolution system.

Sir Creek and its Legal and Political Significance and Resolution

The Sir Creek dispute remains a serious hurdle in the way of any meaningful progress on ties between Pakistan and India, but it also has huge potential to be resolved by recourse to international law and bilateral negotiations. In this respect, I will explore certain important historical, legal and political aspects of the Sir Creek dispute in order to betterinform future dialogue between the two states. Among otherthings, I will discuss the status of the law and its application to the dispute. With regards to Sir Creek, other considerations that will be examined include: the impetus for bothstates to adhereto the lawof the sea, the potential of international dispute resolution and the appropriate choice of procedure for settlement, the relevant weightageto be givento historical and special circumstances as well as the significance to relevant international legal proceedings on the dispute. The various factors relevant to the amicable settlement of such river boundary disputes will also be holistically examined.

Chronology of Practice: Chinese Practice in Private International Law in 2018

Abstract This paper contains materials reflecting the practice of Chinese practice in private international law in 2018. First, the statistics of the foreign-related civil or commercial cases decided by Chinese courts is extracted from the Report on the Work of the Supreme People’s Court (SPC) in 2018. Second, the SPC judicial interpretation concerning the enforcement of arbitral awards is translated, and the interpretation reflects a pro-arbitration tendency in Chinese courts. Third, six cases, on the validity of a choice of court clause, the conflict of laws issues regarding personal injury on the high seas, visitation rights and uncontested divorces, as well as the recognition of foreign judgments, are noted. Fourth, the paper introduces a case embodying the “one-stop” international commercial dispute resolution mechanism in Chinese courts. Finally, the paper also covers six representative decisions regarding the parties’ status, the presumption of the parties’ intention as to choice of law, and the validity of arbitration agreements.

Challenges and Opportunities for the China International Commercial Court

China has confirmed its ambition to join in the global competition for international business dispute resolution services by establishing the China International Commercial Court (CICC). The CICC has now started its operation following a judicial interpretation issued by the Supreme People’s Court. By examining the trial process of the CICC as set out by the Supreme People’s Court and comparing the rules with other international commercial courts, this article provides a detailed overview and critical analysis of the issues concerning cases brought to the CICC. Overall, compared with the approaches adopted by other international commercial courts, the approach adopted by the CICC is conservative. Without bold innovations to China’s existing judicial system, the competitiveness of the CICC is likely to be limited. This article argues that it is desirable for the Court to be more actively reformed. Such reforms might also promote judicial reform in China generally and increase China’s institutional competitiveness in the global business world. This article also aims to outline the challenges that parties (in particular those from overseas) may face in litigation before the CICC and provide the international community with a critical analysis of the operation and framework of the CICC.

Cross-Border Insolvency and International Commercial Arbitration ('Insolvencia transfronteriza y arbitraje comercial internacional')

This thesis argues that one of the main reasons why the interaction between insolvency and international arbitration remains an intriguing intersection is the absence of a unified choice-of-law method that identifies the relevant law that should govern the effects of insolvency on the arbitration agreements, proceedings and awards of the insolvent party. Currently, the private international law methodologies of international arbitration and insolvency simply coexist, sometimes overlap and frequently fail to provide a clear path of analysis for arbitral tribunals and national courts. As a result, those tribunals and courts are frequently faced with two different (and sometimes colliding) methodologies as to how they should resolve the challenges posed by the insolvency of a party to arbitration. The analysis of this clash is a central part of my study. The thesis then designs a comprehensive solution applicable to arbitrators and courts. Very succinctly, the model proposes that the insolvency choice-of-law rules of the seat should be included in the lex loci arbitri. As such, arbitrators should apply those rules to identify the law applicable to the jurisdictional and procedural effects generated by the commencement of insolvency proceedings. Together with the use of the principle of normative hierarchy, this interpretation would align arbitral and judicial methodologies and would contribute to the desired identity of outcome between courts and tribunals. From a pragmatic point of view, this means that the effects of insolvencies covered by the European Insolvency Regulation or the Spanish Insolvency Act should be governed by the lex fori concursus or to the lex loci arbitri depending the pendency of arbitration at the time of the opening of the insolvency proceedings. In contrast, when the seat of the arbitration is located in a jurisdiction that has adopted the UNCITRAL Model Law on cross-border insolvencies, the effect of foreign insolvencies in arbitration will be governed by the lex loci arbitri. The success of this model would be facilitated by the adoption of an international instrument. UNCITRAL is the best positioned organisation to produce this instrument, either by way of amendment to one of its Model Laws in arbitration or insolvency, or by way of a Toolkit for arbitrators. In addition, the IBA has demonstrated a leading role in the field of international dispute resolution and would be well-equipped to prepare a set of Guidelines recommending the proposed model. The thesis suggests that, if a fully-developed model is not achievable in the near future, one of these international organisations should publish a Toolkit that helps arbitrators and parties identify the most common issues raised by the insolvency of a party to arbitration and contributes toward the harmonisation of the method of legal analysis of those issues. The thesis contains the text of the proposed Toolkit.

'One-Stop' Commercial Dispute Resolution Services: Implications for International Investment Law

Many newly-created international commercial courts are supporting integrated commercial dispute resolution services, which blur lines between litigation, arbitration, and mediation services. Such “one-stop” commercial dispute resolution services will affect international arbitration generally and investment arbitration specifically. This chapter examines the likely impact of integrated international dispute resolution services on the investment arbitration regime in three respects: institutionalization, transparency, and enforcement. The chapter reaches the following conclusions. Regarding institutionalization, integrated dispute resolution services likely will contribute to the building momentum for greater institutionalization within the investment arbitration regime. Regarding transparency, integrated dispute resolution services likely will give rise to additional transparency gains within the regime by placing even greater attention on the need for coherent development of law, which requires public access to decision-making. Regarding enforcement, integrated dispute resolution services likely will narrow the existing enforceability gap between arbitral awards, on the one hand, and court judgments and mediated settlement agreements, on the other. A narrower enforceability gap would reduce the significance of one of the key advantages of international arbitration: an unmatched global enforcement regime. The diminished significance of that advantage likely would place additional pressure on the investment arbitration regime to address key vulnerabilities, notably recurrent perceptions of incoherent jurisprudence and arbitrator conflicts of interest.

The reforming Chinese chapter of international dispute resolution under the belt and road initiative

As an increasingly important player in the international economy, China intends to contribute more to the improvement in international dispute resolution. To achieve the Belt and Road Initiative (BRI), China is actively coordinating its legal system to present an improved Chinese chapter of the international dispute resolution regime to facilitate increasing international trade and related national policies. Escalating conflicts with the United States have strengthened China’s determination to actively participate in international dispute resolution. This article presents a complete picture of the Chinese legal international dispute resolution regime and addresses several important innovations inspired by the BRI in the Chinese legal system. This article also elaborates on the latest developments in various dispute resolution methods that could provide more efficient dispute resolution services to both domestic and foreign disputants.

Use of Experts in International Freshwater Disputes

AbstractInternational disputes related to freshwater resources are increasing in number and complexity. The rising complexity is necessarily accompanied and compounded by the involvement of experts in dispute resolution. This monograph examines, through case studies of international tribunal decisions, the role and use (or absence) of experts in international freshwater disputes. Through this examination, the authors identify the good practices as well as the lacunae in expert use in disputes of this nature. The monograph goes on to suggest the best practices with respect to expert involvement and use for a more fair and efficient resolution of international water disputes.

China's BRI and the evolving rules in international dispute resolution

China's BRI and the evolving rules in international dispute resolution

Fostering Future Lawyers in an Era of Globalization: Integrating Dispute Resolution Into Overseas Clinical Legal Education Externships

Twenty first century law students and graduates are increasingly being exposed to legal issues and disputes beyond their own domestic shores and across international jurisdictions. In order to equip students with the necessary knowledge, skills and values to seamlessly transition from law school into dispute resolution processes and legal practice set in the global context, there is a need to incorporate international clinical legal education experiences into the law school curriculum. This paper begins by reviewing the current place of dispute resolution in Australian and Chinese law school curricula and legal practice. The paper then reviews a pilot program conducted by the University of Newcastle Law School, Australia, where Newcastle students undertook a two-week clinical legal education externship in China with a focus on dispute resolution. This included both Australian and Chinese students participating in simulated negotiation and mediation exercises. The program concluded with students interviewing the key stakeholders in a dispute resolution regime based in an arbitration institute, where there were on-site ‘live client’ mediations and arbitrations. This experiential learning opportunity enabled students from both Australia and China to develop cross-cultural communication skills and sensitivities, and comparative knowledge in different legal systems. It also provided opportunities for students to reflect on ways in which the dispute resolution processes can be enhanced in Australia and China, together with a hands-on clinical experience for students at a time when law schools are seeking to further internationalize their teaching and learning. Students’ reflections on this aspect of the externship indicated a strong desire to see additional international dispute resolution learning opportunities set in a practical context.

Fostering Future Lawyers in an Era of Globalisation: Integrating Dispute Resolution into Overseas Clinical Legal Education Externships

Twenty first century law students and graduates are increasingly being exposed to legal issues and disputes beyond their own domestic shores and across international jurisdictions. In order to equip students with the necessary knowledge, skills and values to seamlessly transition from law school into dispute resolution processes and legal practice set in the global context, there is a need to incorporate international clinical legal education experiences into the law school curriculum. This paper begins by reviewing the current place of dispute resolution in Australian and Chinese law school curricula and legal practice. The paper then reviews a pilot program conducted by the University of Newcastle Law School, Australia, where Newcastle students undertook a two-week clinical legal education externship in China with a focus on dispute resolution. This included both Australian and Chinese students participating in simulated negotiation and mediation exercises. The program concluded with students interviewing the key stakeholders in a dispute resolution regime based in an arbitration institute, where there were on-site ‘live client’ mediations and arbitrations. This experiential learning opportunity enabled students from both Australia and China to develop cross-cultural communication skills and sensitivities, and comparative knowledge in different legal systems. It also provided opportunities for students to reflect on ways in which the dispute resolution processes can be enhanced in Australia and China, together with a hands-on clinical experience for students at a time when law schools are seeking to further internationalise their teaching and learning. Students’ reflections on this aspect of the externship indicated a strong desire to see additional international dispute resolution learning opportunities set in a practical context.

The Role of Mediation in International Commercial Disputes: Reflections on Some Technological, Ethical and Educational Challenges

The purpose of this piece is to reflect on the role currently played by mediation in the resolution of international commercial disputes. This objective is both broad and ambitious and the chapter benefits from the fact that this book contains over a dozen contributions from prestigious authors in the mediation sector who adroitly address a broad range of aspects of international commercial mediation. The chapter’s main focus is consequently the outlining and discussing of a specific series of issues that aim to complement the analysis developed by the other contributors in this edited volume. Section II therefore explores the new meaning that some scholars have attached to the widely used acronym ADR (alternative dispute resolution). Considering mediation an important part of the ‘appropriate dispute resolution’ mechanisms available to commercial disputants suggests that a new light is shining through this important sector and the principles that it embraces, such as access to justice. This central idea is developed in Section III, which addresses various highly topical issues in the framework of commercial mediation: the dilemma of compulsory mediation in non-family contexts; the impact of developments in information and communication technology on the mediation milieu; the role of ethics in the contemporary mediation world, and the structure and main objectives of training schemes in international commercial mediation. Section IV concludes the discussion and leads on to the thematic studies of international commercial mediation.

From NAFTA to USMCA: Providing Context for a New Era of Regional Investor-State Dispute Settlement

In October 2018, Trump, alongside his Mexican and Canadian counterparts, delivered what many have dubbed “NAFTA 2.0.” But the new U.S.–Mexico–Canada Agreement (USMCA) adopts not only a new name, but also a new approach to ISDS within its Chapter 14. On November 30, 2018 the leaders of all three nations signed the USCMA and now it is up to the legislatures of each country to ratify the Treaty. It remains to be seen whether Chapter 14’s ISDS scheme will remain intact during the ratification process. Regardless, NAFTA is now a historic relic and we face a new era in regional ISDS. This raises salient questions on motivation and timing. Criticisms of NAFTA are not new. Indeed they have been around since its very early days. So why the focus on renegotiating now and what does the shift from NAFTA Chapter 11 to USMCA Chapter 14 mean for the future of regional ISDS (and, indeed, global dispute resolution)? These developments and questions are considered in three parts. Part I reviews NAFTA’s Chapter 11, including its substantive protections, dispute resolution mechanisms, and general criticisms after twenty-five years of experience. Part II presents context for the emergence of USMCA, followed by an analysis of its Chapter 14 identifying key changes from the former NAFTA regime. Finally, Part III provides concluding remarks and attempts to place USCMA within broader regional and global shifts in international affairs, trade, and dispute resolution.

Building Sustainable Peace in International Relations - Dispute Settlement in WTO

In the absence of permanent utopian peace due to differences and certain interests emerging between states, disagreements between states are a frequent phenomenon that characterizes the international arena, so during the human history, there have been continuous efforts that have affirmed the resolution of disputes between states on a peaceful way. If so far, there are only two ways of resolving disputes: juristic and political measures, then the peaceful resolution of international disputes is a field that can be studied in several ways: in the juristic aspect of various acts of international character, respectively international conventions; in the diplomatic aspect of the practice of resolving different disagreements by peaceful means, as well as in economic terms, which implies the settlement of disputes that may arise between States from the competent WTO bodies, thus maintaining international peace and stability belongs to trade issues, which will be even more detailed study of our research.

International Commercial Courts: A Superior Alternative to Arbitration?

International commercial arbitration has long been the hallmark of international dispute resolution. However, with the increasing establishment of specialized English-speaking courts dealing solely with commercial disputes (‘International Commercial Courts’) the popularity of arbitration is being called into question. The phenomenon of International Commercial Courts is not completely new, but their number has significantly increased in recent times. In 2018 alone, China, the Netherlands, France, and Germany have, among others, announced the opening of specialized English-speaking courts and others are preparing to shortly follow their example. Whilst the arbitral process is often criticized for its costs, procedural delays, or lack of power against third parties, the question remains whether International Commercial Courts will be able to deal with these issues any better. This article first examines the history and the features of International Commercial Courts, with a special focus on those recently established in Europe, before evaluating whether they are – or might be in future – better suited to service the needs of international commerce.

A Wig for Arbitrators: What Does it Add?

This essay (meant for a forthcoming and at this stage undisclosed Festschrift) sketches a preliminary examination of the type of social order that hybrid international commercial courts might contribute to creating or sustaining. It starts by reviewing the arguments advanced, implicitly or expressly, in favour of the development of these hybrid courts. These revolve, it finds, around signalling the return of the state and the figure of the judge in the world of private international dispute resolution, which comes with likely expectations of better societal representation and greater consideration of common state interests, and around mobilizing the ameliorating invisible hand of competition on the dispute resolution market. The essay then critical considers these arguments and assesses other likely societal effects of these courts. It suggests that hybrid courts offer new opportunities to the privileged few and may thus contribute to increasing social inequalities, and that nothing currently indicates that hybrid court judges will be more representative than the existing pool of international arbitrators. In the end, the essay argues that the development of hybrid commercial courts, meant to allow private dispute resolution to expand its markets, may backfire, further fuelling the current pushback against privatized dispute resolution.

How the Supreme People's Court Serves National Strategy and "Makes Law": The Pilot FTZ Opinion and its Implications

This book chapter from the book International Economic Law and the Challenges of the Free examines the Supreme People's Court (SPC) of China's on Providing Judicial Guarantees for the Building of Pilot Free Trade Zones (最高人民法院关于为自由贸易试验区建设提供司法保障的意见)(the FTZ Opinion). The FTZ Opinion provides a window into multiple aspects of the operation of the Chinese judiciary and Chinese law generally, and also illustrates how the gaps in Chinese law, both substantive and procedural (among other issues), create obstacles to achieving the long-term goal set by the political leadership, of China becoming an international dispute resolution center. The FTZ Opinion provides insights into why and how the SPC fulfills its political and substantive roles, and how the SPC communicates and evolves judicial policy in the context of an important reform initiative to support changing Party and government policies, and its relationship with the concerns of the lower courts.

싱가포르의 분쟁해결문화와 ADR제도

Singapore has witnessed rapid economic growths for a couple of decades due to the inward foreign direct investment. To accomplish this purpose, Singapore tries to transform a small island into the international business hub in East Asia. Concomitantly, Singapore government implements strategy to construct this country as the international dispute resolution hub during last couple of decades. In line with this strategy, Singapore has established Singaporian dispute resolution system, such as Singapore court annexed mediation system, Community Resolution Center, Singapore Mediation Center(SMC), Singapore International Mediation Center(SMIC), Singapore International Mediation Institute(SIMI), Singapore International Arbitration Centre(SIAC), and Singapore International Commercial Court(SICC). Furthermore, Singapore provides an unique Arb-Med-Arb service to disputants. The spectrum of dispute resolution institutions indicates that Singapore is expected to implement a vision of multi-door court house in Singapore.

Singapore as a centre for international commercial litigation: party autonomy to the fore

This article considers two recent developments in Singapore private international law: the establishment of the Singapore International Commercial Court and the enactment of the Hague Convention on Choice of Court Agreements 2005 into Singapore law. These two developments are part of Singapore’s strategy to promote itself as an international dispute resolution hub and are underscored by giving an enhanced role to party autonomy. This article examines the impact of these two developments on the traditional rules of private international law and whether they achieve the stated aim of positioning Singapore as a major player in the international litigation arena.