Commercial Arbitration Law Research Articles

DISCUSSING PERSONAL DATA PROTECTION DURING ARBITRATION PROCEEDINGS AND LESSONS FOR VIETNAM

In today's society, where digital technologies have a pervasive influence, data protection has emerged as a paramount concern across various scientific fields. In the realm of legal science, international arbitration, as an alternative dispute resolution mechanism, also faces its own challenges in this regard. This article delves into the issue of personal data, the urgency of data protection in international arbitration, and, through an analysis of typical data protection regulations worldwide, domestic laws on data protection in general and in arbitration proceedings in particular. Based on this analysis, the article proposes recommendations for enhancing data protection in arbitration proceedings, contributing to the improvement of the Draft Commercial Arbitration Law of Vietnam.<p> </p><p><strong> Article visualizations:</strong></p><p><img src="/-counters-/soc/0707/a.php" alt="Hit counter" /></p>

Public Policy as A Ground for Refusing Recognition and Enforcement of Foreign Arbitral Awards: New York Convention, UNCITRAL Model Law and Afghanistan Arbitration Law Perspectives

This article aims to examine the grounds for refusing the recognition and enforcement of foreign arbitral awards based on public policy considerations. It analyzes this issue from the perspectives of three different sources of law: the New York Convention, the UNCITRAL Model Law, and the Afghanistan Commercial Arbitration Law. It discusses the limited scope of the public policy exception under the Convention and the level of discretion given to national courts in applying this ground for refusal. Next, the article explores the UNCITRAL Model Law, which serves as a basis for legislation in many jurisdictions and is often incorporated into domestic arbitration laws. It examines the approach taken by the Model Law towards the public policy exception and compares it to the New York Convention. Finally, the article looks at the perspective of Afghanistan's Commercial Arbitration Law. It analyzes the specific provisions in this law that deal with the recognition and enforcement of foreign arbitral awards based on public policy grounds. Through this analysis, the article aims to provide a comprehensive understanding of how public policy considerations can impact the recognition and enforcement of foreign arbitral awards under different legal frameworks.

The Paraguayan experience in modernizing its secured transactions legal framework

Abstract In the past decades, numerous countries of the five continents have been substantively modernizing their private law legal framework in topics related to commercial law, including secured transactions. Paraguay has not been an alien to this phenomenon and has adopted numerous harmonizing instruments developed by international organizations such as UNCITRAL, Unidroit, and the Hague Conference on Private International Law in commercial arbitration, international contracts, and the sale of goods, among others. This brief contribution describes the Paraguayan situation of access to secured credit with particular emphasis on small- and medium-sized enterprises and the legal shortcomings that obstruct financing backed by movable assets. Further, the article also discusses the road travelled to modernize the Paraguayan legal framework on secured transactions and makes recommendations for the future based on the lessons learned from the process.

Arbitration under the Arbitration Act, 2001, Bangladesh: Procedural drawbacks and some plausible solutions

In today’s world, parties in an agreement always want quick, costeffective and fair dispute resolutions mechanism. As an alternative form of dispute resolution, arbitration is considered one of the most common and binding methods of dispute resolution between parties. In the current age of global movement towards the promotion of foreign investment in Bangladesh and keeping pace with the international business and international commercial arbitration law, Bangladesh is not lagging behind any more. As a part of the Indian subcontinent, the practice of Arbitration in Bangladesh has been being observed in various forms since the time immemorial. Nonetheless, a new arbitration law named as ‘The Arbitration Act, 20011 was enacted consolidating both domestic and international commercial arbitration through repealing the British enacted ‘The Arbitration (Protocol and Convention) Act, 1937’, and ‘The Arbitration Act, 1940’.2 The new Act basically based on the Model Law on International Commercial Arbitration, 19853, which generates a single and unified legal system for arbitration in Bangladesh. However, the much wanted model arbitration law is not free from flaws and in some extent it fails to meeting up the expectations of the parties in agreement, who want the fast and easy access to justice. The main purpose of this paper is to examine the existing arbitration law and procedures in Bangladesh, what are the enabling and constraining factors for ensuring access to justice in the mentioned process, and how it can be used effectively to resolve the shortcomings in a rapidly evolving arbitration process where parties’ satisfaction is a key criterion. Dhaka University Law Journal, 2022, 33(1), 143-162

Peculiarities of Application of Interim Measures in Arbitration

With the entry into force of the new version of the Law of Commercial Arbitration, various amendments have emerged which have advantages and may have disadvantages, one of the main changes - the expanded list of measures of protection. Arbitration is a peaceful way of resolution of disputes, but the Institute for Interim Measures needs to be used in order for the arbitral award to be made. This article discusses specifics of application of interim measures in arbitration. The application of interim measures by the arbitral tribunal may have adverse consequences for the defendant. Therefore, this article will also discuss the possible damages resulting from the application of interim measures in arbitration, indemnity and compensation institute. An analysis of the case law provides conclusions as to whether an intermediate search and a balance of interests are maintained. The findings will also be made or the arbitral tribunal will grant the interim measures without the determination of the state court. In order to discuss in detail the peculiarities of the application of interim measures in arbitration, not only the legal acts and case law of the Republic of Lithuania are reviewed, but also the case law of foreign courts on this issue is analyzed. Problems arising from application of interim measures in national and foreign arbitration courts were also discussed. The analysis of the scientific literature provided preconditions for the formulation of questions, the answers to which would provide a deeper analysis of the scientific problem of this article. According to the results of scientific literature analysis, the general interview questions were formulated in order to get the in-depth insights of the experts about peculiarities of application of interim measures in arbitration. The 5 experts Arbitration specialists perform work functions in the arbitral tribunal were selected and interviewed using the interview method. According to the survey, four out of five respondents consider that it is not necessary for the legislature, in order to address the issue that the arbitral tribunal does not have the possibility to apply coercive procedural measures in the absence of an interim injunction, to allow the claimant to apply for excessive coercive measures. in an arbitration case, in parallel to bring a civil action before a court of general jurisdiction, requesting the use of coercive procedural measures.

Analysis of the Recent Commercial Arbitration Development Plan of the Korean Government – Some Suggestions for Vietnam’s Arbitration Law and Policy

Abstract The settlement of commercial disputes by commercial arbitration is gradually becoming popular in the business community. In the course of economic integration, Vietnam has acknowledged the role of arbitration and attempted to develop its arbitration legal framework in compliance with international practices. However, Vietnam’s arbitration system still faces various issues and thus, has required further reform. There are often cancellations of the referee’s decision, the procedure to cancel the award often lacks clarity, and the venue for the arbitration center’s dispute to be resolved is limited. In addition, the management, quality assessment and training of arbitrators is one of Vietnam’s problems. In Asia, Korea is known as one of the most pro-arbitration jurisdictions in the region. Since the adoption of the Arbitration Act in 1966 that governs both domestic and international proceedings, the Korean arbitration legal framework has always been kept consistent with generally accepted international practices. Recently, the Korean government has introduced an action plan to further promote the robust development of the commercial arbitration industry over the five-year period, from 2019 to 2023, and the goal is to turn Korea into one of five countries that have the world’s best arbitration system. Given the close cultural background and integration strategy of Vietnam and Korea, it is believed that the Korean experience can serve as a good reference for Vietnam in developing commercial arbitration law and policy. This paper begins with analyzing the background of the Vietnamese arbitration system and highlighting some limitations of Vietnamese arbitration. It then switches to the Korean arbitration system and development plan on promotion of dispute settlement by arbitration. The paper focuses on analyzing four main strategies that would: (1) strengthen the foundation of the arbitration industry; (2) activate domestic arbitration; (3) secure competitiveness in the arbitration industry; (4) expand the attraction of international arbitration. The Korean action plan can suggest some interesting strategies for Vietnam to further strengthen its commercial arbitration system.

El principio Kompetenz-Kompetenz, revisitado a la luz de la Ley de arbitraje comercial internacional argentina

Como uno de los pilares del arbitraje internacional, la doctrina kompetenz-kompetenz tiene una función dual. En un sentido positivo, representa el reconocimiento de la existencia de una jurisdicción arbitral que se funda en el acuerdo de las partes y, en consecuencia, el poder de cualquier tribunal para decidir sobre su propia jurisdicción cuando esta es cuestionada. En su sentido negativo, el principio reconoce el poder de los árbitros de ser los primeros jueces que evalúen y decidan sobre su jurisdicción.En este artículo, los autores recapitulan el mencionado principio dentro de la recientemente promulgada Ley de Arbitraje Comercial Internacional argentina, colocando énfasis en sus múltiples matices, que en ocasiones pasan inadvertidos por los tribunales estatales. El propósito es comprender, mediante la lógica y utilidad práctica del principio, la distribución razonable y equilibrada de los roles entre la justicia arbitral y judicial.

The Russian Arbitration Reform: Between Lights and Shadows

Russian system of alternative disputes resolution has experienced relevant development over the last few years. On December 2015, the Russian President signed two laws, which entered into force on 1 September 2016 and substantially reshaped the legal framework for arbitration in the Russian Federation. These are the Federal Law on Arbitration and the Federal Law on Amending Certain Legislative Acts, which introduced amendments to various laws including International Commercial Arbitration Law, Arbitrazh (Commercial) Procedural Code and Civil Procedural Code. The present article provides a comment on the key changes introduced by the said reform, compared to the previous state-of-play. Special attention has been given to the validity of the arbitration agreement, the arbitrability of international disputes and the denial of enforcement of an arbitral award for matters of public policy. Starting from the evolution of the Russian Supreme Court’s approach to the ground for refusal of enforcement of an international award, the article discusses the recent judgments of the Russian courts in relation to the enforcement of an arbitral award to identify the lights and shadows of the international arbitration system in Russia.

The Russian Arbitration Reform: Between Lights and Shadows

Russian system of alternative disputes resolution has experienced relevant developmentover the last few years. On December 2015, the Russian President signed two laws, whichentered into force on 1 September 2016 and substantially reshaped the legal frameworkfor arbitration in the Russian Federation. These are the Federal Law on Arbitration andthe Federal Law on Amending Certain Legislative Acts, which introduced amendments tovarious laws including International Commercial Arbitration Law, Arbitrazh (Commercial)Procedural Code and Civil Procedural Code. The present article provides a comment on thekey changes introduced by the said reform, compared to the previous state-of-play. Specialattention has been given to the validity of the arbitration agreement, the arbitrability ofinternational disputes and the denial of enforcement of an arbitral award for matters ofpublic policy. Starting from the evolution of the Russian Supreme Court’s approach tothe ground for refusal of enforcement of an international award, the article discusses therecent judgments of the Russian courts in relation to the enforcement of an arbitral awardto identify the lights and shadows of the international arbitration system in Russia.

Međunarodna trgovačka arbitraža i međunarodno privatno pravo

Međunarodna trgovačka arbitraža i međunarodno privatno pravo

A comparative study of separability of arbitration clause under main contract of LIca and the UNCITRAL model law

The aim of the paper was to investigate the independence of the arbitration clause from the main contract in the International Commercial Arbitration Law of Iran with a comparative study in the UNCITRAL model law. The effectiveness of this type of procedure, its coordination with the specific objectives and the special status of international traders has led to their increasing willingness to use this legal solution. We use a comparative method, quasi-experimental, to describe similarities and differences in variables in two or more existing groups in a natural setting; it resembles an experiment as it uses manipulation but lacks random assignment of individual subjects. This study begins analyzing international arbitration and the UNCITRAL model rules (Chapters I to VI), then reviewing the national arbitration (Chapter V); thus, the effects of the principle of independence of the arbitration clause can be seen (Chapter VII) and, later, the problems that arise (Chapters VIII to X). Even so, the main conclusion is that the parties usually agree to resolve their international disputes through arbitration, which is judged privately and universally accepted.

Accessing and Assessing Australia’s International Arbitration Act

This review identifies many positive trends in international commercial arbitration law and practice in Australia, especially over the last decade. Yet much work remains to be done, in light of some ongoing uncertainties in the statutory regime and associated case law, and comparatively few international arbitration case filings. The biggest challenge is for law reformers in relation to more controversial issues such as the arbitrability of various types of disputes, mandatory laws impacting on forum selection and choice of laws, the precise contours of the competence-competence principle, and confidentiality of arbitration-related court proceedings. Hopefully, a new phase of comprehensive legislative reform will be conducted through more open and structured public consultation than the three piecemeal amendments since 2015.

Commercial Arbitration Law and Practice in Nigeria through the Cases, by Adedoyin Rhodes-Vivour

Commercial Arbitration Law and Practice in Nigeria through the Cases, by Adedoyin Rhodes-Vivour

Comparative Study of International Commercial Arbitration and International Law in Iran

Arbitration is one of the most important solutions to end enmity and replace judicial inquest. As international trading is extended, referring to judgment to solve the conflicts caused by commercial contracts has been rapidly rising which is a result of judgment benefits over justice authorities. Fastness and efficiency, law inquest cost, compromise nature of selecting the referees, and professional selection are among the most evident specifications of arbitration. Furthermore, Iran’s involvement in the most significant judgment case of the last century i.e. the lawsuits filed between the Islamic Republic of Iran the United States of America after the victory of the revolution would double the essentiality of knowing this organization. Judgment may be either individual or organic (permanent) and also the number of referees needs to be one or three. The most important issue in the judge’s inquest is to follow two factors including independence and impartiality from the beginning until the end of the inquest process. Violating these characteristics or the lack of one of both or other descriptions predicted in the arbitration contract would result in its violation by one side of the conflict or both of them. In the present paper, a comparison is conducted between the commonalty and distinction of Iran’s international commercial arbitration in 1376 and international law.

Concept & Overview of Online Arbitration

Online Arbitration is a new tool for dispute settlement mechanism. This mechanism is more cost effective, more efficient and better than other traditional approaches of dispute settlement. As a new mechanism of dispute resolution, online arbitration has encountered certain difficulties in the application of traditional principles of international commercial arbitration law. Problems of litigation in the commercial disputes have made the alternative disputes resolution promotes day by day. Arbitration is one of the best technique which has found international popularity due to accurate codes and enforceable awards. 188th report of Law Commission of India proposed that we apply a ‘fast track’ procedure for the ‘Commercial Division’ cases in the proposed Commercial Division of the High Courts. The Law Commission, in its 176th Report on Amendments to the Indian Arbitration and Conciliation Act, 1996 proposed a ‘fast-track’ procedure for arbitration in India, where parties opt for such a procedure. We shall keep that model as a guide for prescribing a ‘fast-track’ procedure in Commercial cases of pecuniary value as high as 1 crore or more. Online Arbitration is the most successful simple method for the best resolution of cyberspace disputes. There are many legal issues that arise out of Online Arbitration, such as choice of applicable law, requirements of arbitration agreement, signature and place of arbitration etc. The principle underlying the online arbitration/ cyberspace approach is to find better, faster and cheaper ways to resolve disputes with the aid of technology.

Commercial Arbitration Law and Practice in Nigeria, by Paul Oboarenegbe Idornigie

Commercial Arbitration Law and Practice in Nigeria , by Paul Oboarenegbe Idornigie, LawLords Publications, 2015. The concise title of Professor Idornigie’s book ‘Commercial Arbitration Law And Practice in Nigeria’ aptly defines its subject-matter, scope, and spatial domain. Of the various legal regimes and regulatory frameworks on arbitration and alternative dispute resolution (ADR), commercial arbitration law is arguably closest to centre stage. This is due in no small measure to the global reach and impact of trade and commerce on the daily lives, interactions and transactions amongst peoples all over the world. Concomitant to this is the need to manage and resolve peacefully the conflicts and disputes that emanate from commercial relationships. The value of arbitration is reflected in the widespread recognition of its advantages and benefits in world trade and commerce. Prof Idornigie is not averse to proffering considered opinions and guidance on controversial and complex issues in Nigerian arbitration law. This is demonstrated in various sections of this book. For example, considering it unduly restrictive to confine ‘commercial relationship’ to ‘contractual relationship’, the author argues persuasively in this book for the draft Federal Arbitration and Conciliation Bill to define ‘commercial’ in conformity with the United Nations Commission on International Trade Law (UNCITRAL’s) sense of that term to include legal relationships whether contractual or not. The book is extensive in coverage. The author justifies the scope of this work with the sanguine observation that as arbitration is evolving with new themes emerging there is need to add to the existing literature by aiming … judge{at}africaonline.co.ke

THE STATE OF INTERNATIONAL COMMERCIAL ARBITRATION IN TANZANIA: A COMPARATIVE CRITIQUE AND CALL FOR THE REFORM

This article explores the state of international commercial arbitration law in Tanzania. The Article analyses whether the current legal regime is up to date and in accordance with UNCITRAL Model law perimeters. It is submitted that, for Tanzania to become a regional commercial hub there is a need to ensure that its dispute settlement system meets international standards. One crucial branch of law which needs benchmarking is the arbitration law regime. The article concludes that only after benchmarking its laws to that level will Tanzania not be able to compete commercially with the neighbouring countries of Kenya, Uganda and other countries of the world which have already updated their laws.

Criminal Responsibility for Arbitrators in Chinese Law: Perversion of Law in Commercial Arbitration

Criminal Responsibility for Arbitrators in Chinese Law: Perversion of Law in Commercial Arbitration

A Study on Recent Canada Court’s Decision Regarding the New York Convention and UNCITRAL Model Commercial Arbitration Law

A Study on Recent Canada Court’s Decision Regarding the New York Convention and UNCITRAL Model Commercial Arbitration Law

International Arbitration and Enforcement of Arbitration Awards in Bahrain

Since the formation in the mid-nineteenth century of Al-Majlis Al-Urfi as an international dispute resolution institution consisting of Bahraini and non-Bahraini members, Bahraini law makers have shown great concern for securing protection for foreign investors and commercial entities by developing laws and institutions governing dispute resolution in the fields of international trade and investment. Given the recent rapid economic development of the markets in the Middle East region, further development of laws on trade and investment has become imperative. Currently arbitration in Bahrain is governed by the Civil and Commercial Procedures Law and the International Commercial Arbitration Law, the latter of which is based upon the UNCITRAL Model Law. A new unified comprehensive law based on the UNCITRAL Model Law as amended in 2006 is expected to be promulgated soon. Furthermore, since Bahrain acceded to the New York Convention in 1988, Bahraini courts have enforced foreign arbitral awards. Bahrain is also party to other regional conventions in this respect. Despite these positive developments in Bahraini laws, there still exist some legislative and practical hindrances to arbitration and the enforcement of arbitral awards. This study introduces and analyzes the relevant laws governing arbitration in Bahrain, deals critically with the obstacles facing arbitration and suggests appropriate remedies to these hindrances.