National Arbitration Research Articles

Proceedings before the International Court of Arbitration for Sport

For a long time now, the field of sport has no longer been determined solely by its emotion and fascination with the athletes' readings, but by economic interests, which can be enforced in court if necessary. Until now, the internal bodies of the association were responsible for this and subsequently the state courts. The International Arbitration Court of Sport in Lausanne (Switzerland) has now become an international instrument that replaces both national courts and national arbitration courts or association arbitration tribunals.

Co-regulation as a way to improve the effectiveness of legal regulation in sports

In the article, the authors formulate a definition of co-regulation based on an overview of the approaches available in documents and regulations from the European Union. Co-regulation does not appear to be an intermediate form between state regulation and self-regulation, but rather an independent method of social regulation that can significantly improve legal regulation effectiveness. This is achieved by combining legal principles and norms and state control over their implementation with a broad discretion of professionals in a particular field. Sports is considered a classic case of co-regulation since all Russian sports federations pursue the legally defined goals (development of one or more sports in the Russian Federation, their promotion, organization, sporting events and training of athletes who are members of national sports teams), achieve these goals to realize the legally defined rights and obligations, and undergo evaluation for effectiveness and accreditation by the state. The article thoroughly analyzes the history of adopting a package of amendments to Russian legislation in order to introduce arbitral proceedings for athletes and coaches’ individual labor disputes in 2020. This example demonstrates the weaknesses of exclusive state regulation of legal relations in sports and the shortcomings of self-regulation. Specific problems are identified: their solutions are quite complicated when one has to choose one of the above-mentioned models or their combination, the status of “legionnaires”, duration of labor contracts, conditions for paying salaries and others. The arguments in favor of introducing a national arbitration for athletes and coaches’ labour disputes are considered. The status of Russian and international sports federations is studied in terms of their classification as self-regulatory organizations and the inconsistency of the independent status of sports organizations is demonstrated. In conclusion, the authors propose an amendment to the Federal Law on Physical Culture and Sports in the Russian Federation to legalize co-regulation in this area.

Implementation of the Principle of Party Autonomy in Determining the Law Applicable to the Substance of Dispute in International Commercial Arbitration

The article examines the essence and significance of the principle of party autonomy in international commercial arbitration when choosing the law applicable to the substance of the dispute. Terminological issues of the content of the concepts «essence of the dispute» and «applicable law» are considered separately. It is suggested that the substance of the dispute, to which the substantive law chosen by the parties or established by the arbitral tribunal applies, should cover a wide range of issues related to the rights and obligations of the parties arising from the conclusion, interpretation, enforcement, violation, termination or invalidity of the relevant foreign trade contract. It is summarized that the implementation of the party autonomy to choose the applicable substantive law by including in the foreign trade agreement the relevant provision is based on the normative permission enshrined in the lex fori, under whose jurisdiction arbitration takes place, and has its consequences in recognizing and enforcing arbitral awards. The author points out that the arbitrators have no obligation to apply the substantive law of the state of the place of arbitration to the substance of the dispute, which corresponds to the right of the parties to determine such a right independently, without imperative binding to a particular legal system. It is concluded that the delineation of the choices of substantive law before the parties is not regulated by law, leaving these issues to the discretion of the parties and the arbitration, for the analysis of which one should turn to science, arbitration and court case law. It is also necessary to consider options for establishing the substantive law applicable to the substance of the dispute: on the basis of direct or indirect choice made by the parties, or, in the absence or defect, the impossibility of realization of such a choice, the establishment of applicable law by an arbitration tribunal according to conflict of laws it considers appropriate. This logic is enshrined in all of the national arbitration laws which are analysed and is traced in the rules of arbitration institutions. The article argues that today the parties are free to choose not only national legal systems, but also non-national legal regulators (transnational principles of law, business practices, etc.), can subject various aspects of the dispute to different legal instruments with different degrees of binding power, and also to withdraw from them altogether and agree to settle the case in accordance with the equity principles or to give the arbitrator the mandate of an «amiable compositeur».

Las normas sobre la práctica de la prueba: Reglas IBA, Reglas de Praga o la autonomía de la voluntad

The use of the IBA Rules on the Taking of Evidence in International Arbitration (IBA Rules) or the Rules on the Efficient Conduct of Proceedings in International Arbitration (Prague Rules) is not a common practice in national arbitration. This essay is aimed to publicize its content and to explore the possibility of its use with the current Arbitration and Mediation Law (LAM) or if it is required to propose an amendment to the Law.

Naturaleza procesal y alcances del procedimiento arbitral nacional o doméstico

La sinopsis histórica del país, con relación a la institución del arbitraje, invita a un sin número de inferencias, como ser: la evidencia de regulación inherente al arbitraje casi simultánea a la fundación, la incorporación del proceso arbitral al sistema jurisdiccional durante 165 años (1832-1997) y su escasa aplicación en las relaciones civiles y comerciales durante este tiempo. En la década de los 90s, bajo la égida de la Ley Modelo de Arbitraje Comercial CNUDMI-1985, se promulga la Ley N° 1770 de Arbitraje y Conciliación-1997, que implica la separación del procedimiento civil. La actual Ley N° 708 de Conciliación y Arbitraje-2015 abroga la anterior y adecua la misma a la Constitución Política del Estado (CPE)-2009. No obstante, el procedimiento y la práctica arbitral nacional no concuerdan ni se ajustan a la naturaleza jurídica del arbitraje, ni a los principios inmanentes de esencia arbitral y, menos, a la doctrina que la sustenta. Palabras clave: Procedimiento arbitral / principios esenciales del arbitraje/ Medios Alternativos de Solución de Conflictos (MASC).

Pengaturan Penyelesaian Sengketa Penanaman Modal dalam Peraturan Daerah Nomor 7 Tahun 2018 tentang Penanaman Modal Provinsi Riau

Investment is any form of investment activity, both by domestic investors and foreign investors to do business in the territory of the Republic of Indonesia. Riau Province has issued Regional Regulation No. 7 of 2018 concerning Investment in Riau Province (PMPR). But there are weaknesses and disharmony with the higher regulation, the 2007 Investment Act. The research method used is normative legal research. The regulation in the PMPR regulation is still unclear, especially if there is an obligation to resolve disputes that occur between the government and foreign investors through national arbitration. Whereas in accordance with the 2007 Investment Act, dispute resolution between the government and foreign investors is carried out through international arbitration institutions based on the agreement of the parties.

MEKANISME PENYELESAIAN SENGKETA PELANGGARAN HAK CIPTA MELALUI ARBITRASE

A copyright violation occurs when someone makes an announcement or reproduction of a work without permission from the creator or copyright holder. If this happens, the creator or copyright holder can bring his dispute to be resolved through alternative dispute resolution or arbitration. However, the Law No. 28 of 2014 concerning Copyright does not regulate the mechanism for resolving copyright disputes through arbitration. The purpose of this study is to determine the mechanism for resolving disputes over copyright infringement through arbitration and the mechanism for canceling decisions on resolving disputes over copyright infringement through arbitration. This research uses normative legal research. From the results of the study, the initial stage of the mechanism of resolving disputes over copyright infringement through arbitration begins with the submission of the request for arbitration. Furthermore, the applicant makes a claim letter and proceed with the selection and appointment of the arbitrator. Then the arbitration examination. The final stage of the trial in arbitration is the submission of the award to the parties, and continued with the implementation of the arbitration award. An arbitration award can be requested to be canceled. The mechanism for cancellation of a national arbitration award begins by registering an arbitration award for cancellation at the Registrar's Office of the District Court. Then the court will examine the facts about whether or not the reasons stated by the applicant to cancel the arbitration award. If no, the application is rejected, but if the facts are found, the court is only authorized to cancel part of the arbitration award.

The Restrictive Approach to Legal Representation in Arbitration Proceedings and Its Unintended Consequences in Nigeria

The issue of legal representation in arbitration proceedings accounts for one of the sub-factors of ‘formal legal structure’ and ‘national arbitration law’ that disputing parties consider before choosing a seat of arbitration. Indeed, the ability of disputing parties in arbitration to freely select their desired representatives is embedded in the foundational principle of party autonomy. In Nigeria, a literal interpretation of the national arbitration rules prevents parties from selecting persons not admitted to the Nigerian bar as their representatives in arbitration proceedings. This article examines the impact of this restrictive approach on the attractiveness of Nigeria as a seat of arbitration. The article identifies scope for reform in the law and makes suggestions to create a more liberal legislative and judicial framework in order to promote Nigeria as a preferred seat for arbitration. Arbitration, Legal representation, Seat, Nigeria

Settlement of Construction Dispute in Building Bridge through the Indonesian National Arbitration Agency (Bani)

In a construction work contract, legal disputes often occur during the implementation of the construction work contract, because there are achievements that are late and cannot satisfy one of the parties in the contract. Construction disputes have an impact on legal issues that result in time, cost losses and hinder the contribution of the construction sector in economic growth. The growth of the construction market in the era of globalization is also accompanied by high levels of legal disputes. With the issuance of the Law No. 2 of 2017 regarding Construction Services, it is hoped that problems relating to construction disputes will be more quickly resolved.

The Influence of the Law of the Country of the Place of Enforcement of the Arbitral Award on the Settlement of Disputes in the International Commercial Arbitration

The article examines the key aspects of the impact of the law of the place of enforcement of the arbitral award on arbitration and directly on the recognition and enforcement of arbitral awards, given the study of doctrinal positions, regulations and relevant case law. It was found out that the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 refers to the procedural rules of the country of enforcement to settle matters inherent to the recognition and enforcement of foreign arbitral awards not governed by the Convention, establishing only basic and fairly simple formal requirements for the said procedure, which is one of the strong characteristics of the conventional regime of recognition and enforcement of arbitral awards. In light of this, it is concluded that such an approach is moderate and takes into account the impossibility and lack of practical necessity of unification at the international treaty level of procedural features of recognition and enforcement of arbitral awards, establishing only basic principles and requirements. It is substantiated that there are two components of the law of the place of enforcement of the arbitral award, which regulate the recognition and enforcement of arbitral awards within the relevant jurisdiction, namely substantive and procedural, which, however, are contained in single legal acts — mostly national arbitration laws. The author emphasizes the crucial role of the law of the place of enforcement of the arbitral award in the material and procedural aspects for the procedure of recognition and enforcement of arbitral awards within the relevant jurisdiction. It is concluded that the unification of material grounds for refusal of recognition and enforcement (in particular, non-arbitrability of the subject matter of the dispute and contradiction of the award to public policy as grounds that can be raised by the competent judicial authority at the place of enforcement ex officio, regardless of reference to them by opposing party), as well as the consolidation of basic procedural requirements and principles is carried out by the New York Convention of 1958, which leaves to the discretion of the national legislature, on the one hand, the settlement of minor aspects of the procedure, but, on the other hand, recognizes its full discretion in determining the limits of objective arbitrability, the content and specific filling of the category of international public policy applicable in the relevant jurisdiction. Keywords: arbitral award, international commercial arbitration, applicable law, arbitration process, public policy.

Cacophony of Delocalization; Emerging Trend in the International Commercial Arbitration

Delocalization of international commercial arbitration involve freeing and making an international commercial arbitration from the constraint of the lex loci arbitri that is procedural law of the place of arbitration thereby making it to float and free of national jurisdiction, irrespective of where the arbitration takes place. The delocalization theory is an attractive one from the perspective of both the arbitrators and the parties to arbitration. Mostly the place of arbitration is selected for convenience reasons and neutrality, impartiality, parties are not always willing to submit the arbitration to the procedural norms of that forum especially the rules that permit the intervention of the local court system. The failure to comply with the local procedural law could result in the final award being set aside by a local court which may jeopardize the chances of enforcement of arbitral awards elsewhere. This article examines the concept of delocalization and its practicability in International commercial arbitration particularly how it tends to liberalize National Arbitration law. The article discusses the jurisdictional trend in United Kingdom, India and France and how it has been able to minimize the reliance on the procedural laws of those jurisdictions. The article finds that delocalization of international commercial arbitration is yet to spread globally to many jurisdictions. It discovers that delocalization affected many arbitral awards which were subjected to local procedural laws and later led to annulment of the awards. The article concludes that delocalization of the arbitral process and the final award would mean that parties remain unaffected by unforeseen and undesired local procedural laws. To this effect, the parties will not face the risk that noncompliance with such laws would render their awards unenforceable. Finally, it will take the international commercial arbitration to a greater height from apron strings of national Laws.

Peran Lembaga Arbitrase Dalam Penyelesaian Sengketa Bisnis Internasional: Tinjauan Dari Perspektif Teori Sistem Hukum

Business activity becomes more complex whether its subjects, objects, or its model of transactions. That complexity then could cause the dispute between subjects in such business activity, furthermore when the subjects come from different law system background. Such condition need to be responded, and arbitration could become one of the suit mechanism to settle the dispute in business activity relationship. In Indonesia, regarding to arbitration mechanism, the Indonesian National Arbitration Board (BANI) had already been established under the Act Number 30 Year 1999 on Arbitration and Alternative Dispute Resolution. This study focuses on how arbitration institution plays its role in international transaction dispute settlement. This study uses normative legal research method, and based on secondary data. As a legal structure, arbitration, when it plays its role as a body of mechanism in dispute settlement, it could give advantage to make dispute settlement easier or simpler rather than process of law through court mechanism. That is because the arbitration, such as BANI, implements the simple organizational structure principle, in which an organization has to become lean structure relatively, but still has many functions. Furthermore, both of arbitration institution and business entity have similarity in culture regarding to the spirit of work. When doing something, both of them tend to do it efficiently and effectively wheather from time or cost aspect.

Terapias de masaje para la profilaxis de la lesión Epicondilitis lateral del codo ligada a la práctica deportiva de atletas de tenis de mesa Paralimpico de la academia Provincial Mayabeque

Este trabajo trata sobre la profilaxis de la lesión Epicondilitis lateral del codo, un tema de gran importancia en tenis de mesa Paralimpico de la academia Provincial Mayabeque. Nuestro objetivo es seleccionar terapias de masaje para la profilaxis de la lesión Epicondilitis lateral del codo ligada a la práctica deportiva de atletas de Tenis de Mesa, de ACLIFIM y ANSOC. Esta investigación nos permite trabajar la profilaxis de la lesión a partir de terapias de masaje la cual tendrá como elementos fundamentales el masaje terapéutico y puntos a tratar con digitopuntura. Para la elaboración de este trabajo nos apoyamos en la revisión de la bibliografía relacionada con el tema, la observación al proceso de entrenamiento y en la participación en el curso nacional de arbitraje. Clasificación de tenis de mesa con el objetivo de obtener información acerca de la ocurrencia de dicha lesión y acciones que se realizan durante el entrenamiento para la profilaxis de la misma, la encuesta individual a entrenadores y Arbitros clasificadores con el fin de conocer la lesión más frecuente durante el proceso de entrenamiento y las vías para la profilaxis de la misma y el método estadístico-matemático que nos permitió realizar el cálculo porcentual del comportamiento de todas las incidencias que se presentaron durante la observación y la encuesta. Con este trabajo esperamos lograr una mejor armonía física y psíquica por parte de los practicantes por lo que las terapias de masaje terapéutico y digitopuntura ayudaran en gran parte a adquirir un buen acondicionamiento físico y de esta manera disminuir paulatinamente los casos de lesionados por Epicondilitis lateral de codo en el equipo de Tenis de Mesa de la ACLIFIM y ANSOC de la Provincial Mayabeque

The Effects of Arbitrator's Lack of Impartiality and Independence on the Arbitration Proceedings and the Task of Arbitrators under the UNCITRAL Model Law

This paper aims to investigate the effect of arbitrators’ lack of impartiality or independence on the arbitration process in accordance with the Model Law. The reasons for choosing the latter is that it is the origin for most modern national arbitration laws and any amendments to it would likely to be followed by national laws. The research problem lies in the fact that the Model Law does not tackle in detail the issue of challenging arbitrators for lacking impartiality or independence. A challenge application would have an immediate effect on both the arbitration proceedings and the task of arbitrators. This study concludes that grounds for challenging arbitrators’ impartiality or independence under the Model Law are broad and general. Hence, regulating the scope, grounds and limitations related to the lack of impartiality or independence on the part of arbitrators should be addressed in depth in the Model Law to safeguard the interests of arbitration parties and therefore justice at large.

The Full Recovery of Third-Party Funding Costs in Arbitration: To Be or Not to Be?

The Essar v. Norscot decision rendered by the High Court of England and Wales in 2016 has opened the door, or at least a window, for the recovery of the full fees of third party funding arrangements in international commercial arbitration. The recoverability of the success fees or premiums payable under a third-party funding (TPF) agreement as costs in arbitration can be criticized on three fundamental and overlapping bases. First, the distinction between funds actually advanced by the third-party funder and a premium is crucial. Secondly, the arbitrator’s discretion is defined and limited by law and should focus primarily on the allocation of costs rather than the definition of the recoverable costs. Finally, an award for the full recovery of third party funding fees should only be made on a clearly defined legal basis. In addition, there are a number of policy considerations which point against the recoverability of the full costs of TPF. The authors recommend modifications to institutional arbitration rules and national arbitration laws to clarify issues related to the recoverability of third party funding costs in arbitration. In the meantime, commercial parties may consider including more detailed contractual provisions to avoid any unforeseen or undesired liability for the costs of TPF.

IMPACT OF INTERNATIONAL TREATIES AND CONVENTIONS ON THE BRAZILIAN ARBITRATION LAW

The arbitration as an alternative dispute settlement established itself nationally and internationally as a legitimate instrument to promote and expand access to justice. In this sense, the aim of this work is to analyze how the international treaties and conventions influenced the creation and development of the national arbitration law and its application in Brazil. Thus, we will seek to delimit what were the conventions, treaties, protocols and other international acts that had implications, positive or negative, when the adoption of Law n. 9307/96 by the Brazilian legislature, thereby seeking to analyze whether this law could actually absorb the parameters, criteria, nature and effects allowed by the international legal order. The correlation is also relevant to explain how Brazil has followed the international dynamics on bound rules to legal relations. Later, there will be an approximation, succinctly, on the main aspects of the law in relation to the object, subject, form of expression and effects of the use of arbitration and its respective application in Brazil.

IMPACT OF INTERNATIONAL TREATIES AND CONVENTIONS ON THE BRAZILIAN ARBITRATION LAW

The arbitration as an alternative dispute settlement established itself nationally and internationally as a legitimate instrument to promote and expand access to justice. In this sense, the aim of this work is to analyze how the international treaties and conventions influenced the creation and development of the national arbitration law and its application in Brazil. Thus, we will seek to delimit what were the conventions, treaties, protocols and other international acts that had implications, positive or negative, when the adoption of Law n. 9307/96 by the Brazilian legislature, thereby seeking to analyze whether this law could actually absorb the parameters, criteria, nature and effects allowed by the international legal order. The correlation is also relevant to explain how Brazil has followed the international dynamics on bound rules to legal relations. Later, there will be an approximation, succinctly, on the main aspects of the law in relation to the object, subject, form of expression and effects of the use of arbitration and its respective application in Brazil.

IMPACT OF INTERNATIONAL TREATIES AND CONVENTIONS ON THE BRAZILIAN ARBITRATION LAW

The arbitration as an alternative dispute settlement established itself nationally and internationally as a legitimate instrument to promote and expand access to justice. In this sense, the aim of this work is to analyze how the international treaties and conventions influenced the creation and development of the national arbitration law and its application in Brazil. Thus, we will seek to delimit what were the conventions, treaties, protocols and other international acts that had implications, positive or negative, when the adoption of Law n. 9307/96 by the Brazilian legislature, thereby seeking to analyze whether this law could actually absorb the parameters, criteria, nature and effects allowed by the international legal order. The correlation is also relevant to explain how Brazil has followed the international dynamics on bound rules to legal relations. Later, there will be an approximation, succinctly, on the main aspects of the law in relation to the object, subject, form of expression and effects of the use of arbitration and its respective application in Brazil.

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.

Prospects for Developing Sports Arbitration in Kosovo

Recent developments and success stories related to Kosovo sports convey the necessity to explore the legal infrastructure related to sports. Only this year, Kosovo made an international breakthrough in sports by getting admission in both UEFA and FIFA, and its sportswomen made history by winning the first ever-gold Olympic medal in Rio2016. Last year, Kosovo was granted admission to FIBA, thus becoming its 215th member. The internationalization of the Kosovo sport demands the establishment of an effective and efficient sports system aligned to rules of international sports associations, EU law and other international standards, as well as sound institutional infrastructure that will implement this regulatory framework. Along with the development of the sports law, many countries have also developed national sports arbitration bodies thus providing to sports organizations, members of the national Olympic Committees and other interested parties, a forum where they can refer their contractual disputes related to sport. In Kosovo, arbitration law has received a significant attention during the last couple of years and two arbitration centers have been established, one with the American Chamber of Commerce (AmCham) and another one with the Kosovo Chamber of Commerce (KCC). Both arbitration centers provide commercial arbitration services, and while commercial arbitration and sports arbitration share many characteristics, the sports arbitration, nevertheless distinguishes from non-sports-related arbitration in many aspects. Sports-related disputes are facilitated with procedural rules specifically adapted to sports thus ensuring speed, special expertise, and last but not the least, consistency and transparency. In addition, sports-related arbitration bodies also serve as a final court of appeal for disciplinary cases. The aim of the present paper is to examine Kosovo’s current legal and institutional infrastructure related to sports and present some findings with regard to the level of its conformity with EU and international standards, as well as to look into the possibilities of creation of a national sports arbitration body for settlement of sports-related disputes. In this regard, the paper will take into account best practices of other countries, the Court of Arbitration for Sport and recent case law in this regard.