Place Of Arbitration Research Articles

Иностранное судебное решение и недействительность арбитражного соглашения (анализ решения Апелляционного суда г. Берлина от 18.05.2006)

The article includes an analysis of the judgment of the Court of Appeal (Kammergericht) of Berlin dated May 18, 2006, concerning the refusal to recognize and enforce the award of the International Chamber of Commerce (ICC) (place of arbitration — China). As an argument for refusal to recognize and enforce the foreign arbitral award, the Berlin Court of Appeal referred to: 1) recognition in Germany of the decision of the Wuxi People's Court to set aside the arbitral award (invalidity of the arbitration agreement); 2) invalidity of the arbitration agreement from the point of view of the applicable law. In our view, the recognition of a foreign judicial act on the annulment of an arbitration agreement contradicts the obligations of the state under the New York Convention 1958, as this international treaty reserves the possibility for the state to recognize and enforce a foreign arbitral award even despite its cancellation in the state rendering. It appears that in this matter the German court should first of all proceed from the invalidity of the arbitration agreement in terms of the applicable law (the law of the People's Republic of China).

Иностранное судебное решение и его влияние на действительность арбитражного соглашения (анализ российского и иностранного опыта)

Introduction: the study examines the impact of a foreign judgment on the validity of an arbitration agreement. As part of the study, it was substantiated that a foreign court decision has the property of prejudice in cases where it complies with the conditions of recognition established by Russian legislation. The purpose of the paper is to study the impact of a foreign court decision on the validity of an arbitration agreement. Methods: special scientific methods including historical-legal, critical-legal, legal-dogmatic methods and the method of interpretation of legal norms; empirical methods of comparison, interpretation and description, methods of formal logic. Results: the analysis of legal doctrine, legislation, and court practice has shown that the conclusions of a foreign court on the invalidity of an arbitration agreement due to violation of the procedural legislation of the state do not have prejudicial force for international commercial arbitration (if the place of arbitration is the Russian Federation) and for Russian courts. Conclusions: the conclusions of a foreign court concerning the validity of an arbitration agreement are binding on Russian state courts only if the foreign court has established factual circumstances indicating the presence of a substantive defect in the arbitration agreement (for example, lack of legal capacity, conclusion under coercion, etc.). Moreover, due to the autonomous nature (‘severability’) of the arbitration agreement, the relevant party must prove that the substantive defect in question is covered by the arbitration agreement.

Legal Problems of Enforcement of Foreign Arbitral Awards set aside at the Place of Arbitration

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958 (the 1958 New York Convention) allows recognition and enforcement of arbitral awards in most countries of the world. Court practice of the states has revealed some problems of application of the 1958 New York Convention. One of such problems is recognition and enforcement of the arbitration award cancelled by the state court in the place where it was made. In the process of research of legal consequences of execution of annulled arbitral awards both general scientific methods of knowledge (analysis and synthesis, induction and deduction, generalization) and special scientific methods (formal-logical, formal-legal and method of legal prediction) were used. The scientific novelty of this work is the rationale that the recognition and enforcement of annulled arbitral awards lead to negative consequences. Enforcement of arbitral awards annulled at the place of their rendering undermines the status of such institution as arbitral dispute resolution and the whole system of acts aimed at regulating the activity of arbitration. Execution of such decisions leads to a violation of the principles of legal certainty, lis pendens, res judicata, pacta sunt servanda, and most importantly - violates the rights of participants in arbitral proceedings. It is noted that attempts are being made to amend the mechanism of recognition and enforcement of arbitral awards, established by the 1958 New York Convention, with regard to the enforcement of annulled arbitral awards. It is proposed to make such changes through the adoption of an additional protocol to the 1958 New York Convention or a new international treaty.

중국의 임시중재제도에 관한 연구

This study presents matters to be noted for Korean parties who want to use ad hoc arbitration system through a study on Chinese ad hoc arbitration system. This study comparatively analyzed Chinese laws, regulations, judicial interpretations and cases related to the ad hoc arbitration system. Although China does not permit ad hoc arbitration by law, it does allow the use of ad hoc arbitration for disputes under some special circumstances, such as disputes between companies located in Free Trade Zones. In international commercial arbitration, ad hoc arbitration can be used when the parties have stipulated a law other than Chinese law as the governing law for the arbitration agreement, or have stipulated a place other than China as the arbitration place without stipulating a governing law for the arbitration agreement. When a Korean parties intend to resolve a dispute with Chinese parties through ad hoc arbitration, the following should be noted. First, in the ad hoc arbitration agreement, the governing law for the arbitration agreement or the place of arbitration must be stipulated in a law and place other than China. Second, since domestic investment companies located in China Free Trade Zones are Chinese corporations, ad hoc arbitration should not be used for transactions with Chinese companies without an international element.

On the Question of the Legality of Concluding an Arbitration Agreement with the Participation of Consumers

The paper is devoted to the analysis of the issue of arbitrability of disputes involving consumers, which does not find an unambiguous solution either in law or in judicial practice. The author examines the positions of the highest judicial instances, as well as courts of general jurisdiction and arbitration courts on this issue, which are contradictory in nature. Having conducted a systematic analysis of legislation, legal science and judicial practice, given the special legal situation of the consumer, the author concludes that it is possible to have an arbitration agreement between the consumer and a person engaged in entrepreneurial activity, subject to certain conditions, in particular, the presence of the free will of the consumer to consider the dispute in the arbitration court and the absence of infringement of his rights in arbitration proceedings in comparison with the consideration of the dispute in the state court. The question is raised about the need for the administration of this category of disputes by permanent arbitration institutions. According to the results of the scientific research, changes in the norms of the legislation of the Russian Federation regulating the relations under consideration are proposed. Thus, it is proposed to word paragraph 1 of Article 17 of the Law of the Russian Federation “On Consumer Rights Protection” as follows: “Consumer rights protection is carried out by a court or an arbitration court”. It is also proposed to supplement Article 17 of this Law with paragraph 4: “Disputes involving consumers can be submitted to an arbitration court if all guarantees provided by law for the arbitration party are met for the consumer, provided that the following conditions are met: 1) the dispute must be considered during the administration of a permanent arbitration institution; 2) the consumer must be exempt from paying the costs associated with resolving the dispute in arbitration; 3) the place of arbitration must be determined within the subject of the Russian Federation in which the consumer resides.”

Pronouncement for the Anaitians and the Metapians

The ϝράτρα for the Anaitians and the Metapians falls under a definite group of archaic and classical Olympian documents, which hand us some of the oracles issued by Zeus; this time, the god orders those communities (otherwise unknown and not belonging to the political community of ‘the Eleans’) to bind themselves in a reciprocal φιλία under penalty of exclusion from his altar. The decidedly imposing dictate of Olympian Zeus, absolute ruler of this φιλία, undoubtedly contradicts the image of his sanctuary as a (politically) neutral place of arbitration of conflicts between the (autonomous) communities living around it.

Arbitration in Syria: Navigating Postwar Disputes

AbstractThe place of arbitration within the Syrian legal system has received scant academic and professional attention, and as such, remains largely unstudied. Shedding much-needed light on the nature of arbitration in Syria as a resilient form of ancient customary Arab alternative dispute resolution, this contribution appraises the salient features of the Syrian Arbitration Law 2008 and arbitration-related provisions within recent Syrian legislation. It aims to understand the position of arbitration in Syria between existing national and international law frameworks for dispute settlement and to assess the potential for establishing independent, transparent, and efficient tribunals to resolve disputes arising out of ongoing conflicts that have plagued the country since 2011. If arbitration proves to be a mechanism for ordering the peaceful settlement of postwar disputes within and concerning Syria, parties, practitioners, and stakeholders must employ perspectives that include and are capable of navigating Syria’s existing arbitration landscape.

PASL V. GE: Indian Parties’ Fillip to Foreign-seated Arbitrations, but at What Cost?

Can two Indian parties elect a foreign seat of arbitration? This question has been the epicentre of a long-standing divergence in judicial opinions across Indian courts. However, this divergence was put to rest by the Supreme Court of India in PASL Wind Solutions (P) Ltd. v. GE Power Conversion (India) (P) Ltd. (decision of 20 April 2021), ruling in favour of Indian-parties’ autonomy to elect a foreign-seat of arbitration. Recognizing party autonomy as the “brooding spirit” of arbitration, the Supreme Court overruled two judgments of the Bombay High Court (Seven Islands Shipping Ltd. v. Sah Petroleums Ltd and Addhar Mercantile Pvt. Ltd. v. Shree Jagdamba Agrico Exports Pvt. Ltd.) for not understanding the law (on foreign seated arbitrations between Indian parties) in its correct perspective. Further, it clarified that the term ‘international commercial arbitration’ (in the proviso to section 2(2) of Indian Arbitration and Conciliation Act, 1996) was ‘party-centric’, in the context of section 2(1)(f) of the Indian Arbitration and Conciliation Act, 1996. On the other hand, the same term, when seen in the context of section 44 of the Indian Arbitration and Conciliation Act, 1996, was qualified as ‘place-centric’. This note considers the ramifications of the Supreme Court’s approach in reaching these conclusions, identifying and addressing significant gaps and ambiguities that arise therefrom. Indian Parties, International Commercial Arbitration, Party Autonomy, Foreign Seat of Arbitration (International Chamber of Commerce), Place of Arbitration, Venue of Arbitration, Foreign Substantive Law, Foreign Awards, Enforceability of Foreign Awards, Public Policy, Overruling

Ефективний захист як ціль правозастосування в міжнародному комерційному арбітражі

У статті досліджуються питання ефективності між-народного комерційного арбітражу та ефективного пра-вового захисту. У світлі практики Європейського суду з прав людини автор досліджує сучасні підходи до розу-міння ефективності в праві. Встановлено, що ефектив-ність засобу юридичного захисту зазвичай пов’язуєть-ся з такими його характеристиками, як доступність, достатність, визначеність. При цьому під час оцінки ефективності враховуються також загальний правовий та політичний контексти, в яких вони функціонують, та конкретні обставини справи заявника, незалежність таких заходів захисту від дій держави тощо. На основі аналізу автором зроблено висновок, що міжнародний арбітраж як раз і є тим ефективним засобом правово-го захисту, до якого звертаються сторони, підписую-чи арбітражну угоду. Його ефективність як способу вирішення комерційних спорів та захисту прав учас-ників міжнародних відносин залежить не лише від «ефективного» арбітражного розгляду, який зазвичай врегульовується Регламентом. У розумінні ефектив-ної арбітражної процедури варто виділяти збалансо-ваність і ефективність використовуваного сторонами Регламенту і те, наскільки передбачені ним процедури та процесуальні дії є розумними з позиції їх доступно-сті сторонам, достатні для потреб захисту порушених прав, визначені та ефективні з точки зору витрат часу і коштів сторін. При цьому автором обґрунтовано, що ефективність арбітражу залежить від поведінки самих сторін спору та їх юридичних радників, складу арбіт-ражу, а також характеру і складності самої справи та положень права, застосовуваного до арбітражного розгляду (lex arbitri). Адже, які б ефективні процеду-ри не були закладені в Регламенти, незнання їх Сто-ронами спору та їх представниками, чи небажання їх використовувати з метою затягування процесу, або ж з метою формування доказів для подальших юрисдик-ційних заперечень у судах місця арбітражу, так само як і оцінка складом арбітражу наданих доказів, юрис-дикційних заперечень тощо, можуть суттєво впливати як на швидкість арбітражного розгляду, так і на ефек-тивність захисту стороною своїх прав.

Kewenangan Pengadilan Negeri Jakarta Pusat Dalam Pembatalan Putusan Arbitrase Di Janewa Swiss (Studi Kasus PT. Pertamina dan PT. PLN melawan Karaha Bodas Company)

This research examines how the competence/authority of the Central Jakarta District Court in rejecting the arbitration award in Geneva, Switzerland which is final, binding and enforceable in resolving business disputes of PT. Pertamina and PT. PLN against Karaha Bodas Company. This paper uses normative legal research. The result of this research is that international arbitration decisions are final and binding on the parties. Two legal remedies may still be made against this decision, namely the rejection and cancellation of the implementation of foreign arbitration. The emergence of two legal remedies for annulment of the Geneva arbitration award in both the Swiss Federal Court and the Central Jakarta District Court has caused a lot of debate on which court is authorized to annul the Geneva arbitration award. With the appointment of Geneva as the place of arbitration (the arbitration seat) and the law underlying the arbitration dispute settlement (Lex Arbitri), the Swiss Federal Court has the authority to annul the Geneva arbitration award. Thus, the Central Jakarta District Court has no competence to reject the Geneva arbitration award .

Seat, Venue, Place of Arbitration: The Never Ending Debate in Indian Arbitration Regime

Seat, Venue, Place of Arbitration: The Never Ending Debate in Indian Arbitration Regime

Where to go: the floating arbitration agreement

Abstract The article examines questions concerning interpretation of commercial arbitration agreements, according to which the place of arbitration is ‘floating’ and hence cannot be finally determined at the time of contracting. The question is, primarily, whether this inherent uncertainty about material procedural rules ‘infects’ the jurisdictional allocation to such an extent that the arbitration agreement must be considered unenforceable and secondarily, whether the floating element in itself constitutes a sufficiently specific procedural rule. Against the background of an analysis of case law from USA, England, Singapore, and Hong Kong, and drawing on experiences from unilateral and bilateral option agreements, the article extracts general principles of interpretation as well as provides specific guidance on the drafting of floating arbitration agreements.

Awards, Orders and Other Types of Decisions

Awards, Orders and Other Types of Decisions

ВИЗНАЧЕННЯ ПРАВА ЗАСТОСОВНОГО ДО СУТІ СПОРУ СКЛАДОМ АРБІТРАЖУ ПРИ ВИРІШЕННІ МІЖНАРОДНИХ КОМЕРЦІЙНИХ СПОРІВ

The article examines the main approaches to the determination by the arbitral tribunal, in the absence of a choice of parties, of a substantive law applicable to the merits of a dispute, when resolving disputes in international commercial arbitration. It is noted that the three fundamental approaches to the establishment by the arbitral tribunal of the law applicable to the merits of the dispute include: 1) the application by the arbitrators of the principle of the closest connection; 2) recourse to conflict-of-laws rules that the arbitral tribunal considers applicable (indirect approach, voie indirecte) 3) granting arbitrators the right to directly establish and apply substantive law without resorting to any conflict-of-laws or rules (the so-called voie directe or direct approach). It is summarized that all of the above approaches are aimed at ensuring the compliance of the applicable substantive law established by the arbitral tribunal with the substance of the dispute and the subject of the contract, especially the first two related to conflict of laws – both with a specific reference to law, which has the closest connections with legal relations, and with the ability of the arbitrators to refer to other conflict-of-laws rules that it deems applicable. The difference concerning the third of the approaches, voie directe or direct choice of the applicable law, lies in the greater degree of freedom of the arbitrators in this matter, since the obligation of the arbitral tribunal to refer to the conflict of laws rules of a certain national system of private international law or transnational conflict of laws is generally eliminated. The author claims that the arbitral tribunal, depending on the approach adopted in the country of place of arbitration, whose mandatory provisions determine the procedure for the arbitrators to establish the applicable substantive law in the absence of a choice of parties, and the rules enshrined in the arbitration rules of the relevant institution, can either independently establish such a right (direct approach) or turn first to the definition of applicable conflict of laws rules, according to which the choice of substantive law will be made (indirect approach). Such conflict-of-laws links, as a rule, include: the principle of the closest connection, the country of the place of performance of the contract, the country of location of the party that must carry out significant performance, etc.

Singapore Financial System: Financial Disputes in Commercial Arbitration

Purpose: the article examines the main problems associated with the extension of arbitration of domestic and international financial disputes in Singapore. The characteristics of the development of international commercial arbitration in Singapore, including the role of the Singapore International Arbitration Center SIAC, examined the new SIAC Arbitration Rules - the Arbitration Rules of 2016 and the Investment Arbitration Rules of 2017, as well as the Arbitration Regulations of the Singapore Exchange 2006 and the Arbitration Rules Singapore Exchange on the Derivatives Trade 2005. In order to achieve this goal, the article must solve the following tasks: to determine whether there are institutions providing services in Singapore and on the arbitration of financial disputes; to study the main problems of transferring a cross-border financial dispute to international arbitration; to study the practice of international arbitration on this issue. Methods: this article is based on an interdisciplinary concept of research, which allowed to distinguish the distinctive features of the legal regulation of the settlement of financial disputes in Singapore. Results: the provisions of the Arbitration Rules of 2016 and the Investment Arbitration Rules of 2017 are innovative not only for the SIAC Center, but for all international commercial arbitration as a whole. The new regulations of the SIAC Center enshrined provisions for the consolidation of arbitral proceedings in disputes from two or more treaties; on attracting additional parties; the refusal of claims or objections at an early stage if the claim or objection is manifestly unfounded from a legal point of view or the claim / objection is obviously beyond the jurisdiction of the Arbitration Tribunal; on delocalization of the place of arbitration; additions to the provisions on extraordinary arbitration and the procedure for accelerated production. The new Arbitration Rules came into force on January 1, 2016 and proved itself from the very best side. The statistics of the SIAC Center for 2016 were unprecedented. Conclusions and Relevance: the materials presented in the article show the special role of arbitration in resolving domestic and international financial disputes. The practical application of its results will improve the Russian legislation in the field of resolving financial disputes.

Domestic Arbitration in India: Legal Framework Under Arbitration and Conciliation Act

The expression “Domestic Arbitration” has not been defined in the Act, though it finds place in the Part I of the Act. 7 Section 2(2) provides that the Part I “shall apply where place of Arbitration is in India”, while Section 2(7) further provides that an arbitral award made under this Part shall be considered as a “domestic award”. The reading the two provisions together makes it evident that if an arbitration is held in India, the outcome of which is a domestic award under Part I of this act, is a Domestic Arbitration. It would, therefore, comprehend an arbitration to a dispute which has arisen or may arise, between the parties, in respect of a defined legal relationship,8 whether contractual or not.

State responsibility and the enforcement of arbitral awards

The place of arbitration as a dispute resolution mechanism for disputes involving states and investors depends upon the value accorded to a valid award. Many states voluntarily comply with awards rendered against them. However, the occasions of non-compliance may result in the incurrence of international responsibility by states pursuant to both customary and treaty norms. This article considers some of these norms, as well as the bases on which states dispute responsibility for non-enforcement of arbitral awards or avoid execution. To this end, the various sections of this article examine: (i) the relevance of customary norms of state responsibility to investment arbitration; (ii) scenarios in which the refusal of national courts to enforce arbitral awards have been found to incur state responsibility by breaching an investment treaty; (iii) scenarios in which a state’s refusal to respect an award rendered against it by an investment tribunal might incur international responsibility and relevant issues such as immunity; and (iv) the role of the International Court of Justice and, its predecessor, the Permanent Court of International Justice in upholding the integrity of arbitral proceedings, including by adjudicating the validity of arbitral awards rendered against states.

PENYELESAIAN SENGKETA PENGALIHAN SAHAM PERUSAHAAN PEMBANGKIT LISTRIK ENERGI PANAS BUMI MELALUI PUTUSAN ARBITRASE ASING (SIAC)

Arbitration is one of popular means to solve disputes arise between parties in international business nowadays. Arbitration characteristics such as: confidentiality; “party autonomy” (principle which gives both parties freedom to agree on arbitration institution or ad hoc arbitration, to appoint an arbitrator, arbitration procedure, place of arbitration, governing law) and also international enforceability due to the New York Convention 1958 are regarded as part of the main advantages of arbitration. This research is a normative law using concept analysis approach legal, regulatory approaches undertaken by examining legislation relevant to the issues of law and experiences to approach a case of transfer of shares Bali Power Corporate. Sources of legal materials used in this study are such as related literature, journals, articles and thesis that are relevant to the subject matter. The results of this study indicate that partial award (SIAC) has a binding force for the parties to the dispute. Legal implications arising from this decision that the party whose breach the contract has an obligation to replace the damage of PT. Bali Tenaga Corporate since the contract was signed.

Applicable Laws and Standards for Interim Measures in International Arbitration

This Note examines the grant of interim measures in international arbitration by focusing on the various processes and ways a party would have to comply with or consider when trying to obtain an interim measure. The current debate on the appropriate forum, the applicable law and standards that the tribunal should apply has made the discussion more interesting and invigorating. This has led to calls by some commentators that the regime should be harmonized and a transnational principle that will guide stakeholders should be evolved. This Note considers the power of the court or the arbitrator to order interim measures. It also looks at the ways the applicable law and standards can be ascertained as well as the sources of the applicable and standards, as provided by various arbitral rules (ad hoc and institutional) as well as the evolving transnational principles of law. It concludes by stating that until the harmonization of the various regimes governing the grant of interim or provisional measures is achieved, national laws of the place of arbitration and the place of enforcement cannot be completely excluded from international arbitration and the dreams of a transnational regime will only remain aspirational.

Determining the Place of Arbitration in ICSID Additional Facility Proceedings

Determining the Place of Arbitration in ICSID Additional Facility Proceedings