International Arbitration Law Research Articles

A Symbiosis of International Arbitration and International Insolvency Law Interception & Assistance

This paper explores the assistance that can be had of international arbitration in international insolvency cases. As an operational scheme, they have hitherto operated in separate worlds, by and large without intersecting. They stake-holders need to develop understanding of the applicable laws of arbitration and insolvency, given the acknowledgeable role of international arbitration in the international insolvency proceedings. This paper examines the issue in seven parts. Part I walks through the structural firmament of international arbitration and insolvency laws, very briefly. Part-II advances perspectives with regard to their processes and applicability operations. Part-III looks for locus standi of using legally the arbitration in international insolvency cases against the backdrop of E.U. Insolvency Regulation and UNCITRAL Model Law. Part-IV explores enabling mechanism to enable the interaction of two areas, of international insolvency and international arbitration. Leading to Part V, this paper delves into possible uses of arbitration in international insolvency cases. Logically, then Part VI seeks to audit the process- the limitations inherent in the arbitration proceedings (of New York Convention), of processes borne out of relationship between the two and unavoidable features of arbitration. While Part VI explores the procedural limitations, Part VII discusses the possibility of intersection in terms of extant public policy of the stake-holder jurisdiction- the issues of public law qua private law, and assessing arbitration in terms of public policy. In conclusion, a sweeping obiter dicta attendant on the foregoing analysis wraps this paper observing that there is a need to further explore and elaborate the intersection of arbitration proceedings in insolvency context, and that much enterprise could be profitably done in this area.

EU Law in International Arbitration: Referrals to the European Court of Justice

While the courts of Member States are enabled or even required to submit preliminary questions concerning the interpretation of EU law to the Court of Justice of the European Union such referrals have traditionally been held inadmissible where made by arbitration panels. The article highlights a gradual softening of the Court of Justice’s position on this matter which would allow arbitral tribunals in investment protection proceedings to address the Court of Justice already at present. It further outlines some fundamental changes in the overall environment of commercial arbitration which should lead to a reversal of the Court’s position also in this field.

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.

Financing Conservation: Texass Water Infrastructure Bank and the 20 Percent Set-Aside

In the early 2010s, Texas suffered a historic drought that drew attention to the long-term limits and vulnerabilities of its water system and that prompted the state legislature, in its 2013 session, to take on water as one of its key policy issues. With near unanimity, the Legislature passed a package of bills that – with voter approval, in the form of Proposition 6 – created a new water infrastructure bank, the State Water Implementation Fund for Texas (SWIFT). SWIFT is intended to provide the state-level financial assistance that water utilities had previously estimated they needed to implement the water strategies recommended in the State Water Plan (SWP). The legislature capitalized SWIFT with a $2 billion appropriation and established a set-aside – codified at Texas Water §15.434(b)(2) – that requires twenty percent of SWIFT monies go toward SWP strategies for conservation or reuse. This set-aside helped to win support for SWIFT and Proposition 6 among environmentalists and other stakeholders potentially wary of new large-scale infrastructure projects. The Texas Water Development Board (TWDB) has been tasked with implementing SWIFT and the set-aside according to a statutorily mandated schedule. In this white paper, the Center for Global Energy, International Arbitration and Environmental Law at The University of Texas School of Law (Energy Center) identifies the most important challenges that the agency will face in doing so.

Charles Darwin y el arbitraje

En el presente artículo, apoyándose en doctrina autorizada y en data empírica, los autores sustentan la idea que el arbitraje es un fenómeno evolutivo que recoge las mejores prácticas del sistema del civil law y el common law. Por último, comentan el rol del soft law en el arbitraje internacional y la importancia que juega hoy en día la lex mercatoria.

Le Principe de Validité de la Convention D’Arbitrage International en Droit Français: un Principe Dynamique

The principle of validity of the international arbitration agreement is regularly used by the French judiciary. This principle means that an arbitration agreement is generally valid, save for a violation of international public policy. Even though contested by some scholars, this principle properly reflects the French understanding of the law of international arbitration: a law entirely devoted to favouring private justice. It is, in this sense, a ‘dynamic’ principle. It appears to this author perfectly justified, although it necessarily needs to be limited where a weak party is interested.

Enforcement of Foreign Arbitral Awards in Turkey. Further Steps Towards a More Arbitration-Friendly Approach

The aim of this study is to set out the main principles with regard to the enforcement of foreign arbitral awards under Turkish law, and to question the main impediments that prevent enforcement. In this framework, prominent judgments of the Turkish Supreme Court and the approach of the Turkish legal doctrine are analysed in a holistic manner. We first consider whether the New York Convention or the Turkish Code on Private International Law should prevail when rendering an enforcement judgment. After this, we aim to explain how the conditions for enforcement should be interpreted according to the general characteristics and the main structure of international arbitration law. In this regard, the amendments brought in by the recent Turkish Code on Private International Law are scrutinised in order to reveal whether they give rise to a more arbitration-friendly climate. As a result, it will become easier to foresee the points which should be considered in obtaining an arbitral award that might be enforced in Turkey.

Williams & Kawharu on Arbitration by David Williams QC and Amokura Kawharu with contributing authors Daniel Kalderimis, Anna Kirk, and Campbell Walker

Williams & Kawharu on Arbitration, by David Williams QC and Amokura Kawharu with contributing authors Daniel Kalderimis, Anna Kirk and Campbell Walker. 1, (Published by LexisNexis, 2011), ISBN 9781877511547, 1246 pages Williams & Kawharu on Arbitration is the first comprehensive exposition of the law and practice of domestic and international arbitration written from a New Zealand perspective. In the authors’ own words, the ‘work aspires to provide comprehensive coverage of domestic arbitration in New Zealand, as well as addressing international commercial arbitration and investment treaty arbitration, both of which have increasing relevance for New Zealand and, refreshingly, ‘attempts to emphasise the practical aspects of arbitration where appropriate’.2 Not only does the work provide the most detailed analysis of the New Zealand Arbitration Act 1996 (as amended in 2007) (the ‘NZ Act’) and arbitral practice in New Zealand yet written, the authors also draw on a wide range of international jurisprudence and their own extensive experience of international commercial and investment treaty arbitration to provide an invaluable resource for arbitration lawyers, academics, arbitrators, judges and students of all nationalities. Williams & Kawharu on Arbitration is split into four main parts and thirty chapters. The first two parts are heavily focussed on the NZ Act and contain a detailed analysis of arbitration law in New Zealand. Part 3 is focussed on an exploration of arbitral procedural rules that are commonly chosen by the parties in international commercial arbitrations, whilst Part 4 introduces the legal framework and key legal concepts of investment treaty arbitration. The work comprehensively explores familiar themes, such as: the nature, source and types of arbitration; the role of the court in arbitration proceedings; the arbitration agreement; choice of and applicable law considerations; the composition of the tribunal; the arbitrators’ jurisdiction; the conduct of the proceedings; interim measures; confidentiality; making, correcting, recognizing, enforcing and setting aside and appealing awards; and issues of costs. The authors’ approach to each topic, which is sustained throughout the book, becomes immediately apparent in Part …

International Arbitration Law: How Much Unified?

This article discusses various laws on international arbitration. It compares different provisions of arbitration law like English Arbitration Act, 1996, UNCITRAL Model Law, New York Convention, US Federal Act, 1925. It specifically compares arbitration agreement, doctrine of competence-competence, arbitration award & etc.

Navigating EU Law and the Law of International Arbitration

The European Union and international arbitration are two robust legal regimes that have managed to develop largely in accordance with their own respective ‘first principles’, and they have accordingly thrived. This article initially explains why that has been the case. But the era of parallelism between the regimes has ended, and rather suddenly. This article identifies the two principal fronts on which tensions between EU law and international arbitration law have emerged. Interestingly, both commercial and investment arbitration are implicated. A first front entails a conflict between the European Court of Justice's (ECJ's) expansive notions of EU public policy and two well-established axioms of international commercial arbitration law: first, that public policy must be construed narrowly when invoked as a ground for annulling an award or denying it recognition and enforcement; and second, that parties in arbitration are expected to raise all substantive arguments pertinent to their claims or defences in the course of the arbitral proceedings and not reserve them for post-award relief from a disappointing award. A second front finds EU Member States invoking their obligations under EU law as a defence – sometimes jurisdictional, sometimes substantive – in investor-State tribunals. The paradigm argument is that EU law mandates withdrawal of an illegal state aid in reliance on which an investor entered that market. This article examines two prevailing methodologies for addressing these tensions, in arbitral tribunals themselves as well as in reviewing courts. It concludes that many such tensions – particularly those along the first front – may be resolved through accommodation techniques well-established in other areas of the law. Others, particularly those arising in the investor-State context, resist resolution in that way and are requiring decision-makers to face the uncomfortable prospect of making one of these legal regimes cede ground to the other. The ECJ and investor-State tribunals are understandably inclined to prioritise the regimes differently, with the ultimate outcome falling to member state courts which owe allegiance to both regimes.

The Arbitration Reform in France: Domestic and International Arbitration Law

This article presents a detailed analysis of the latest reform of French arbitration law, embodied in Decree N.2011-48 portant reforme de l’arbitrage of 13 January 2011 (the ‘Decree’). The Decree is a codification of most of France's pro-arbitration case law developed since the 1980 and 1981 reforms, some new rules and some new formulations of existing rules. The result boosts even more the efficacy of France's arbitration regime. Most of its provisions have been in force since 1 May 2011.

The Investment Arbitration between Italy and Cuba: The Application of Customary International Law under Scrutiny

Abstract The present article describes the arbitral proceedings in the investment dispute between Italy and Cuba, with special regard for the Final Award rendered in 2008. The arbitration has raised a number of interesting issues in the application of customary international law, including the admissibility of claims in diplomatic protection in investment disputes under a BIT, the application of the rule on the exhaustion of local remedies, the attribution of acts of State-owned enterprises to the State and the use of general international law as a means to interpret treaty provisions defining the scope of the BIT. Some of these aspects have proved particularly controversial, as shown by the thorough dissenting opinion attached by arbitrator Tanzi, and they are critically analysed. The arbitration confirms the profound interdependence of bilateral treaties and customary international law in international investment arbitration.

International Commercial Arbitration in New York edited by James H. Carter and John Fellas

This is a wonderful and important book, composed of 13 comprehensive, descriptive and detailed chapters, each written by a different author, with each chapter devoted to a separate aspect of international commercial arbitration. The volume was edited with meticulous care by James H. Carter, then a partner in the New York office of Sullivan & Cromwell LLP, and John Fellas, a partner in the New York office of Hughes Hubbard & Reed LLP. Every chapter, without exception, adds to our understanding of international arbitration in the United States, and particularly in New York. It will be quite useful for non-American advocates and arbitrators whose work brings them to New York for an international arbitration or who need to know more about the law and procedure of international arbitration in New York. Space does not permit a review of all 13 chapters in this volume. But after several general observations, I...

Recent Developments in Arbitration in Australia

Australia has recently modernized its international and domestic commercial arbitration law to reflect (with some amendments) the 2006 version of the UNCITRAL Model Law on International Commercial Arbitration. As well as legislative reform, Australia has taken practical steps such as providing new dispute resolution facilities and specialist court arbitration lists to enhance Australia as an arbitral seat. Recent judgments by Australian courts have been supportive of international arbitration and have indicated a willingness to apply the international jurisprudence relating to the Model Law and the New York Convention. These improvements have increased Australia's attractiveness as an arbitral seat.

The More Favorable Regime for Confirming International Arbitral Awards Made in the U.S.: A Choice Within the 'Overlapping Coverage' of FAA Chapters One and Two

According to U.S. courts, Chapters One and Two of the Federal Arbitration Act provide “overlapping coverage” over arbitral awards that were made in the U.S. and also fall under the New York Convention. The meaning of “overlapping coverage” under U.S. arbitral law remains unclear, but affects the defeated party’s ability to challenge the conversion of these awards to court judgments and, consequently, the parties’ decision to seat an arbitration in the U.S. According to every Circuit that has addressed the question, when a U.S.-rendered award is domestic, it is subject to summary, challenge free confirmation under Chapter One if it is not vacated within 90 days of its rendering. If instead the U.S.-rendered award is non-domestic and falls under the Convention, the question is whether Chapter Two of the FAA, which implements the Convention, deprives the prevailing party of this potential challenge-free confirmation. By one reading, it does not. According to the Convention’s little-explored Article VII(1), the so-called “more-favorable regime” provision, the Convention does not deprive an interested party of any right to confirmation she may have under the law of the country in which enforcement is sought (here, the U.S.). This gives rise to an interpretation of “overlapping coverage” whereby the prevailing party to a non-domestic award made in the U.S. may have the regimes of Chapters One and Two available as parallel entitlements. The choice by the prevailing party among the available regimes, including challenge-free confirmation under Chapter One, depends on the regime that is most advantageous. And under this interpretation, alluded to by courts and commentators and developed herein, the prevailing party would enjoy summary, challenge-free confirmation of an award made in the U.S. for which vacatur is not timely sought even if that award falls under the Convention. The implications for the U.S. law of international commercial arbitration are manifold.

The New French Law on International Arbitration

French international arbitration law achieved a higher pro-arbitration level with the new Decree No. 2011-48 of January 13, 2011. The new provisions come into force after May 1, 2011. This is the first comprehensive reform of French international arbitration law since the adoption of the pre-existing legal framework of 1981. French case law, which provided a well-structured basis for this decree, proposed numerous pragmatic solutions to problems encountered in international arbitration. This new decree codifies previous significant French case law while also providing novelties, innovations such as the possibility for the parties to waive by express agreement the annulment of the award any time they choose; the one-month time period after notification of the award to request annulment; the enforceability of the award notwithstanding an action to set aside or an appeal against an enforcement order.

Judicially Assisted Third Party Discovery in Aid of Foreign International Commercial Arbitrations Under the Evidence Act 2006

International arbitration continues to grow in popularity as an alternative to litigation as entities engaged in international commerce seek to take advantage of the flexibility, autonomy, efficiency and cost-effectiveness that it offers. However a significant gap exists in international arbitration law in that parties to international arbitrations cannot obtain discovery of documents from third parties located outside the judicial jurisdiction of the arbitral seat. This has created a divergence of opinion between District Courts in the United States, a slim majority of whom have considered themselves able to assist foreign international arbitrations with discovery under § 1782 of Title 29 of the United States Code, despite the fact that this provision is unsuited to the narrow limits of discovery as it is understood in international arbitration. This paper argues that New Zealand’s international judicial assistance legislation is much more in tune with international arbitration, and therefore that New Zealand’s courts are well placed to follow the example of the majority of United States courts by interpreting the legislation in a way which allows them to assist international arbitrations as well as international court proceedings.

Arbitration Agreements and Anational Law: A Question of Intent?

Within the context of increased delocalization in the law of international arbitration, anational law has become a well accepted choice of law in the resolution of international disputes. In Halpern v. Halpern, however, the English High Court decided that arbitration agreements form an exception to that development, holding that these are subject to the common law rule that confines contracts to the realms of municipal legal systems. This article discusses the applicability of anational law to arbitration agreements. In particular, the article argues that this issue should be determined in accordance with the principle of party autonomy and, on that basis, evaluates the English approach against a wider international framework.

Commentario Breve al Diritto dell'Arbitrato Nazionale ed Internazionale (A Short Commentary to the Law of National and International Arbitration) edited by M. V Benedettelli, C. Consolo, and L. Radicati Di Brozolo

Commentario Breve al Diritto dell'Arbitrato Nazionale ed Internazionale (A Short Commentary to the Law of National and International Arbitration) by M.V BENEDETTELLI, C. CONSOLO, L. RADICATI DI BROZOLO (eds.). Published by Cedam (2010, pp. 1066) . Hardcover, Price EUR 130 ISBN 9788813290238 This short commentary provides a comprehensive and in-depth overview of arbitration law by collecting and commenting on, in one single volume, the regulation applicable to national and international arbitration. Whereas the first part of the book, devoted to national arbitration, is a traditional article-by-article commentary on the provisions of the Italian Code of Civil Procedure and of the …

Australia Adopts the 'Real Danger' Test for Arbitrator Bias

This note concerns recent changes to Australian international arbitration law that replace the existing common law ‘reasonable apprehension’ test for arbitrator bias with the ‘real danger’ test laid down by the House of Lords in R v Gough [1993] AC 646. Australia is the first country to adopt this test as a provision of its written arbitration law. This note provides some examples of the application of the ‘real danger’ test, and discusses how Australian courts may interpret and apply this ‘Model Law Plus’ provision in the coming years.