National Arbitration Research Articles

Building an international arbitration hub: China’s competitiveness and direction

Building an international arbitration hub or a regional international arbitration hub has become the development goal and future direction of many countries and regions. The Chinese arbitration community has also been exploring the possibility of establishing an international arbitration hub in China. By issuing the Several Opinions on Promoting the Sound Development of the Maritime Industry in 2015 and the Plan for Further Deepening the Reform and Opening-up of China (Shanghai) Pilot Free Trade Zone in 2017, the State Council of the PRC deployed a key task, that is, to develop a modern shipping service industry (including maritime arbitration), and further set the goal of “exploring the establishment of a national arbitration legal service alliance for pilot free trade zones and an exchange and cooperation mechanism for Asia-Pacific arbitration institutions, so as to accelerating the formation of a global-oriented Asia-Pacific arbitration hub in China”. In this context, China has initiated the revision of the Arbitration Law of the People’s Republic of China, and foreign-related arbitration institutions in China have invested considerable resources in exploring ways to improve their level of arbitration services. In this article, the authors will discuss whether China has the competitive advantages to establish an international arbitration hub and its possible direction of efforts from the perspective of comparative analysis of several major countries, regions or institutions that are currently in the leading position in the global arbitration service industry.

O‘zbekistonda xalqaro tijorat arbitraji haqida yangi qonunchilik: amaliyorning fikri

As an international arbitration practitioner, one of the initial inquiries we make when discussing the choice of arbitration seat with clients is whether the prospective jurisdiction has adopted the UNCITRAL Model Law. This question holds significant importance. We are only about 45 minutes into this conference, and we have heard extensive discussion of the Model Law already, and I think that is for a good reason. The Model Law really does reflect the state of the art in international arbitration practice as Christina Pak alluded to earlier. When a country adopts a version of the UNCITRAL Model Law as its own national arbitration law, it sends an immediate signal to investors and members of the business community that the law is a good and reliable law, i.e., the type of law that one needs to help to develop that jurisdiction as a strong seat of arbitration and facilitate the attraction of foreign investment and trade. In the instance of Uzbekistan, when practitioners in Uzbekistan and in the region and internationally ask whether the country has an arbitration law based on the UNCITRAL Model Law, of course, the answer to that question now is “yes”.

NIZOLARNI MUQOBIL TARTIBDA HAL QILISHDA HAKAMLIK SUDLARI VA ULARNING TURLARI

In the conditions of modernization and reform of our country, the ongoing reforms in the law enforcement and judicial spheres are aimed primarily at the comprehensive protection of human rights, freedoms, and legitimate interests. Over the past period, large-scale organizational and legal measures have been taken to gradually strengthen the judicial system, ensure its independence, and reliably protect the rights and freedoms of man and citizen. It should be noted that today, in addition to competent courts, arbitration courts face various problems when considering several cases of civil and economic disputes in the manner of alternative dispute resolution. This article discusses the issue of arbitration courts and their types with an analysis of foreign experience. In the course of studying the normative legal acts of foreign countries on the types, characteristics, significance, and requirements for an arbitration court, the role of a national arbitration court was discussed. This article discusses the issue of arbitration courts and their types in alternative dispute resolution, and also develops proposals and recommendations for our national legislation.

The Comparison Of Arbitration Dispute Resolution Process Between Indonesian National Arbitration Board (BANI) And London Court Of International Arbitration (LCIA)

Arbitration is a way of resolving a civil dispute outside the general court based on an arbitration agreement made in writing by the disputing parties. Each country has a different settlement process. In Indonesia arbitration is based on Law Number 30 of 1999 concerning Arbitration and Alternative Dispute Resolution. The Indonesian National Arbitration Board (BANI) is an agency established by the Indonesian government for law enforcement in Indonesia in resolving disputes or differences of opinion that occur in various trade, industrial and financial sectors. Likewise in Indonesia, in England there is also an Arbitration Board called LCIA which is one of the oldest arbitration institutions in the world and has resolved 303 cases annually. This agency acts autonomously and independently in upholding law and justice. The purpose of this research is to determine the differences in the dispute resolution process through arbitration in Indonesia and the UK. The research method used in this article is normative legal research and through a literature study approach with secondary assessment of legal materials and juridical data analysis. The results prove that the process and procedures for dispute resolution at the LCIA institution are different from the BANI institution in the process and procedures. as well as the legal basis used in resolving the parties' business disputes.

حكام التحكيم الاتفاقية وسلطة القضاء في الرقابة عليها: دراسة تحليلية مقارنة

This study examines the consent arbitral awards and the possiblity of applying to them the same conditions, rules and effects of ordinary arbitral awards. The study is divided into two main sections: Section one analyzes the legal framework of consent arbitral awards; their definition, purpose and the powers of arbitral tribunals to issue them as being originated from the parties’ consent. This is important in the light of some illegal practices of some disputants who may utilize such awards to cover such practices. The second section deals with the judicial review of consent awards either through annulment or enforcement proceedings under national arbitration laws and international conventions, and in particular the New York Convention of 1958 or the Washington Convention of 1965. This study concludes that the Consent Arbitral Awards play an active role in keeping the good relations between the disputants while having the same status and effects of ordinary arbitral awards. The study invites arbitral tribunals to play a more scrutinizing role of the settlement agreements before issuing the in-consent awards in order to avoid the misuse of the arbitral process as a cover of illegal practices.

Turkey

Abstract As complex international commercial relations developed, the practice of arbitration became more popular around the world. In this context, arbitration practices on a local basis have been shaped accordingly. The purpose of this study is to give general information about the international and domestic legislation in Turkey in the field of arbitration. Within this context, it evaluates the rules to be applied to international and national arbitration proceedings in Turkey by taking into account the effect of UNCITRAL model law on the evolution of national arbitration legislation of Turkey.

HAKAMLIK SUDINING TUZILISHIDA HAKAMLIK BITIMI

In the conditions of modernization and reform in the world, the ongoing reforms in the law enforcement and judicial-legal spheres are aimed primarily at the comprehensive protection of human rights, freedoms and legitimate interests. Over the past period, large-scale organizational and legal measures have been taken to gradually strengthen the judicial system, ensure its independence, and reliably protect human and civil rights and freedoms. At present, there are problems associated with the arbitration. In some cases, state courts consider such transactions to be annulled, in other cases, they recognize their legal force and give priority to commercial arbitration (arbitration courts). This article discusses the issue of an arbitration agreement in the arbitration court system based on an analysis of foreign experience. In the course of studying the normative legal acts of foreign countries on the form, content and requirements for an arbitration agreement, the essence of arbitration agreements in national arbitration courts is considered. The article presents proposals for legislation as a result of the analysis of the arbitration agreement.

Non-recognition of Dissenting Opinions in CAS as a Controversial and Unresolved Matter

In this article the authors cover the problem of expressly established non-recognition of dissenting opinions (separate opinions) in the Court of Arbitration for Sport (CAS) being uncommon for arbitration institutes. In particular, the authors analyse approaches to dissenting opinions in various national legal systems and arbitration institutes (as well as other dispute resolution bodies) which mainly allow dissenting opinions (as described below). The main focus and goal of this article is to explore possible considerations that might have led to non-recognition of dissenting opinions in CAS proceedings and whether this is common in arbitration and international justice. Having researched this question, the authors conclude that the origins of such a substantive influence on the existing regulation could be: (1) the CAS’s precedent role; and (2) the influence of Swiss law as lex arbitri. The authors also conduct substantial analysis of existing views, asking whether the lack of dissenting opinion is a positive or a negative feature and conclude that the dissenting opinion is still very controversial regarding its impact. The chosen topic is important because the approach of various dispute resolution bodies seems not to be unanimous and there is no global tendency in this respect. The topic is especially timely, considering the recent decision of a Frankfurt Court of Appeal which refused to enforce an International Chamber of Commerce (ICC) award due (among other reasons) to the existing dissent which in the opinion of the court violated public policy. dissenting opinions, separate opinions, concurring opinions, arbitral awards, the Court of Arbitration for Sport (CAS), sports arbitration, international arbitration, decision, award, alternative dispute resolution, arbitrators, deliberation, joint or individual opinions

Ensuring the Right of Access to Court during the Consideration of the Case by International Commercial Arbitration

Apparently, one of the arguments against the application of the ECHR to arbitration is that neither the preparatory materials of the Convention nor the text of the ECHR itself contain a direct reference to arbitration. At the same time, according to one of the principles of interpretation of the Convention, which is stated by the ECtHR in the judgment in Tyrer v. United Kingdom: «The Convention is a living instrument that must be interpreted in the light of modern conditions». Various arbitration-related decisions of the Convention’s review bodies indicate that, as regards the application of the Convention to arbitration, it has also been interpreted as having direct relevance to it. The ECtHR takes into account the changing rules of national and international law and generally provides a broad and autonomous interpretation of the ECHR. This also applies to the Court’s interpretation of the most obvious provision of the ECHR that may be relevant to arbitration, namely Article 6 (1) of the ECHR. This article examines the issue of theoretical and practical interaction between the right of access to court and international commercial arbitration. Examples of decisions of the European Court of Human Rights on the possibility of exercising the right of access to court during the consideration of foreign economic disputes by arbitrators are given. It is argued that national arbitration laws more or less invariably establish procedural rights similar to those provided for in Article 6 (1) of the ECHR. However, it cannot be ruled out that national arbitration laws violate the Convention in some cases. Even assuming that the laws of arbitration in all countries comply with Article 6 (1) of the ECHR, the fact that this provision imposes certain obligations on states in relation to arbitration by virtue of the fact that the Convention can be considered a quasi-constitutional norm.

The Existance of National Sharia Arbitration Agency in The Settlement of Sharia-law Banking Dispute In Rejang Lebong District

Purpose: The purpose of the study was to figure out how the existence of the national sharia arbitration body was in the settlement of sharia banking disputes in Rejang Lebong district. With the writhing of sharia-based economies, it certainly does not seal the possibility of a problem arising from it. In terms of matters resolved without need to to the realm of the court whether it has gone through a national sharia arbitration body or not yet.Design/Method/Approach: In the drafting of this article the author uses a qualitative approach. To search for data in this study constituents used interview methods with specific respondents. Analyzed it with deductive techniques. So that it could be narrated the results of those findings.Findings: The findings in this study turned out that the existence of national sharia arbitration agencies was still minimal, this being because of some of the first minimal financial or business institutions that used sharia foundations as a foundation in transacting. Second, still the lack of community understanding of the existence of national sharia arbitration institutions. For the problem settled ligitally only, many did not yet know it should be settled in the Court of Religion. Many societies who assume such things will be settled in ordinary public courts. Third, based on the recognition of bank leaders using the principle of sharia transactions, there was indeed no dispute at the bank yet.Originality/Values: The conclusion that can be drawn from research findings is the absence of existence from national arbitration agencies within the economic problems of the community of Rejang Lebong County

Fransız Milletlerarası Tahkim Kanunu’nun İncelenmesi

Abstract International arbitration notion contains to be commercial and to be international together, different from national arbitration notion. To be international criterion is to the fullest extent arranged in old French CPC art. 1492, which contains also French Arbitration Code. According to this article which is protected by 13 January 2011 reform; arbitration which is about international commercial benefit is an international arbitration. In 1992 French Arbitration Commitee prepared a report with the name of “Perspectives for İmprovement of French Arbitration Law”. The amendements of the directive of 13 January 2011 is neither a revolution nor an easy make up but it is a real reform which can be known as by the words clarity, definiteness, flexibility, freedom of choice, effectuality and speediness. The reform of 2011 did not changed the liberal structure of the French international arbitration law which is stand by freedom of contract and limited only by public policy. Keywords: France, International Arbitration, Freedom of Choice, Public Policy, Liberal

The importance of separating national and international arbitration in Iranian and UNCITRAL law

International arbitration is a solution to resolve disputes between persons due to the existence of a communication element International is distinguished from national arbitration rules.International title on international arbitration may make this impression that International arbitration is a nascent institution, while a review of past literature reveals that It has been an institution of the past. Therefore, national arbitration is different from international arbitration. What factors This article examines the factors that lead to the internationalization of arbitration.Normally, in any case, the slightest communication factor may cause conflict of laws, This highlights the need for international commercial arbitration .For this reason, the UNCITRAL Model Arbitration Law has introduced a large number of communication factors that are subject to international arbitration for countries.However, in Iranian law, the distinction between national arbitration and international arbitration, contrary to the UNCITRAL Model Law, is achieved simply by the International Commercial Arbitration Law of Iran and simply by having different nationalities of the parties.In other words, the legislator has introduced citizenship as the only communication factor that causes the inclusion of Iran's international commercial arbitration law.This causes most arbitrations to be subject to national arbitration so that the parties have limited freedom and cannot use the rules of international commercial arbitration even by mutual agreement.In this article, the factors that are based on the model law The internationalization of arbitration has been examined and their non-inclusion in commercial arbitration regulations Will be examined internationally and then interact with the Convention on the Recognition and Enforcement of Arbitral Awards New York 1985 will be analyzed. Keywords : International Arbitration, National Arbitration, foreign Arbitration, Communication Elements. DOI: 10.7176/JLPG/110-14 Publication date: June 30 th 2021

Emergency Arbitrator – An Efficient Mechanism for Commercial Arbitration Development?

Abstract The emergency arbitrator mechanism, despite its recent establishment, has made certain contributions to the development of international commerical arbitration. However, this mechanism has not been recognized and recorded in the national arbitration laws as well as the rules of procedure of arbitration institutions in Vietnam. In this article, the author aims to describe the operating mechanism and to discuss the benefits and limitations of the emergency arbitrator mechanism. Accordingly, the author will draw some conclusions regarding the recognition of this mechanism into Vietnam arbitration laws with the goal of developing the commercial arbitration arena in Vietnam.

Johnny Veeder QC 1948–2020 From the General Editor

Thirty-six years ago, with a handful of arbitration aficionados, Johnny Veeder founded Arbitration International, later providing yeoman service as the journal’s second General Editor. The journal aimed to deliver high-quality scholarship in the English language, on a broad spectrum of topics related to resolution of cross-border disputes, both public and private. At that moment, for better or for worse, international arbitration found itself moving into the realm of serious big business, leaving behind its earlier status as a ‘cottage industry’ permeated by the culture of French and Swiss legal artisans, or specialists working in particular fields such as insurance or construction. In his farewell as General Editor, Johnny noted the exponential increase in global trade that overlapped the journal’s early decades, bringing a concomitant upsurge in the number and size of arbitral proceedings.1 More and bigger proceedings meant new national arbitration statutes, as well as the teaching of...

Reforming the Legislation on the International Commercial Arbitration of Ukraine: Realities or Myths

International commercial arbitration (ICA) is an alternative way to resolve foreign economic disputes. Initially, arbitration itself was seen as a neutral court in which the parties to the dispute were independent of national courts. Arbitration agreements and decisions must be recognised by national courts without any complications or review procedures. Although granting commercial parties some independence to agree that their dispute will be considered by independent arbitrators is a key principle in ICA, the struggle for supremacy between national laws and national courts on the one hand and the autonomy of the parties and the independence of the international arbitration system on the other continue. Over the years, national laws have sought to control, regulate, interfere with, or support ICA in various ways. To counter attempts to ‘localise’ ICA and promote equality in this area, private, professional institutions and international and intergovernmental organisations have developed a significant body of law designed to ensure self-government and dispute settlement procedures in ICA. Nevertheless, international commercial arbitration cannot exist independently of national jurisdictions. Examining the activities of ICA, it can be seen that the importance and impact of national arbitration laws and national judicial supervision are significantly reduced, but the lex fori still plays an important role in arbitration. Thus, the reform of the normative regulation of international arbitration also affected Ukraine. The article analyses the radical changes proposed by the legislator regarding the procedure for establishing institutional arbitrations, expanding the arbitrability of disputes.

Post award arbitral tribunal's mandate under the UNCITRAL Model Law and national laws based thereon

The UNCITRAL Model Law on International Commercial Arbitration provides for the extension of the mandate of the arbitral tribunal post issuance of the final award for the issuance of correction, interpretation, additional award, and remittance of the award back to the arbitral tribunal to remove grounds for challenging the award. Using a doctrinal approach, this paper examines the deviations of the national laws of adopting jurisdictions from the Model Law in regards to this extended mandate, and evaluates the improvements and drawbacks in these deviations. Mainly, the findings of this paper are that, of the many deviations, the positive changes are those that provide comfortable and lenient default provisions for the benefit of inexperienced parties, and since correction, interpretation, additional award, and remittance are useful provisions that are designed to help self-rectify the arbitral process, without adversely delaying it, then the changes that increase the efficacy of these provisions are welcomed. On the other hand, unnecessary deviations are seen as drawbacks that hinder the harmonization of national arbitration laws aimed at by the Model Law. The adopting jurisdictions shall be limited to those acknowledged as such by the UNCITRAL.

Analisis Hukum Pelaksanaan Penyelesaian Sengketa Bisnis Dengan Metode Arbitrase Online di Indonesia dan di Singapura

Online arbitration has been carried out by the Singapore International Arbitration Center (SIAC), then SIAC Rules, Arbitration Act of Singapore, and UNCITRAL as a legal basis SIAC already has rules regarding online arbitration. The Indonesian National Arbitration Board (BANI) has practically carried out online arbitration, but the BANI Arbitration Rules & Procedures and Law No.30 of 1999 as the legal basis for BANI do not have clear rules. This writing will discuss the comparison of online arbitration enforcement at SIAC with BANI, how SIAC regulates online arbitration execution and whether it can be adopted for online arbitration arrangements at BANI. This research was conducted using a normative juridical method. The approach used is legislation and comparison. The results of the comparative research on the implementation of online arbitration at SIAC and BANI show that SIAC already has rules that clearly regulate the implementation of online arbitration from arbitration registration, hearings, to online arbitration awards. In the implementation of online arbitration at BANI, BANI online arbitration registration is possible because it has the rules, but in the subsequent process of online examination hearings, and online arbitration awards do not yet have rules that regulate explicitly and clearly. Online arbitration arrangements at SIAC can be adopted into online arbitration procedure law by BANI and the Indonesian Arbitration Law because they do not conflict with other laws in Indonesia.

A figura do third-party funding no processo arbitral brasileiro: natureza jurídica do contrato de financiamento e os efeitos processuais

The increasing use of arbitration in Brazil arouses the need for the permanent development of arbitration doctrine. In this perspective, the promotion of skillful measures to encourage the use of arbitration. To clarify, the presence of third-party investors has great aptitude for the development of this dispute settlement mechanism. Under that context, methods should be devised in order to enable the third-party funder to have the legal security necessary to carry out its investment, so as not to suffer undesired procedural effects. A controversial issue in the specialized literature, the participation of third parties in arbitration, defended in this article as an alternative to the financier, presupposes knowledge of the nature of the legal business and the broad view of the concept of part of the arbitration clause, which was sought to outline in this work. By considering all the values involved in the theme, Brazilian national arbitration will have a great ally in favor of its development.

IMPLEMENTATION OF DISPUTE SETTLEMENT OUTSIDE THE COURT THROUGH THE INDONESIAN NATIONAL ARBITRATION AGENCY (BANI) BASED ON ISLAMIC JUSTICE

In the current era of globalization, the economy's most prominent characteristic is the fast-paced nature that drives people to enter the free market and free competition. Proper implementation of what was agreed upon together is the hope of all parties bound in the agreement. Dispute resolution that arises in the implementation of an agreement can be settled through arbitration. The purpose of this study is to examine and analyze the truth about the implementation of dispute resolution outside the court through the Indonesian National Arbitration Board. It has been effective in providing legal certainty and justice. This study uses a sociolegal research approach (sociolegal research approach). The data used are primary and secondary data. In this analysis technique, the steps taken are collecting legal materials, both primary legal materials and secondary legal materials relating to the rule of law related to alternative dispute resolution, which is analyzed descriptively analytically. Research Findings found that the implementation of dispute resolution outside the court has not been effective because it has not provided legal certainty and justice. Weaknesses in the arrangement of third parties outside the arbitration agreement can participate in the dispute resolution process through arbitration, the settlement system, and the cancellation system of arbitration awarding outside the court through the Indonesian National Arbitration Board (BANI). The need for reconstruction of the provisions in Article 36, Article 46, and Article 70 of Law No. 30 of 1999 concerning Arbitration and Alternative Dispute Resolution.

PERLAWANAN PIHAK KE TIGA (DERDEN VERZET) ATAS PUTUSAN BADAN ARBITRASE NASIONAL SYARIAH (BASYARNAS)

This research article describes the resistance of a third party (Derden Verzet) to the decision of the sharia national arbitration body (BASYARNAS), where we know the form of Law of the Republic of Indonesia Number 30 of 1999 concerning Arbitration and Alternative Dispute Resolution Article 60 states that, final and have permanent legal force and bind the parties . In his explanation, it is explained that, the arbitration award is a final decision and thus cannot be appealed, appealed or reviewed. This research method uses a normative juridical approach and a conceptual approach, namely an approach based on statutory regulations (Statue Approach) and an approach by looking at the principles or legal principles that apply in statutory regulations. The results of this study state that the Law of the Republic of Indonesia Number 30 of 1999 concerning Arbitration and Alternative Dispute Resolution, does not regulate the resistance of a third party (derden verzet) to the BASYARNAS Decision. For third parties who feel their rights and interests have been harmed by the BASYARNAS decision, they can file a challenge to the religious court which carries out the execution of the BASYARNAS verdict. Key Words : derden verzet, BASYARNAS, and Law of the Republic of Indonesia