Practice Of International Commercial Arbitration Research Articles

XАLQАRО TIJОRАT АRBITRАJIDА MАXFIYLIK TАMОYILINI QО‘LLАSHNING HUQUQIY MАSАLАLАRI

In this article, the authors describes the concept of the principle of confidentiality in international commercial arbitration, its history, its legal description, comparative legal analysis, and issues related to the practical aspects of the application of these cases. In addition, it analyzes the scope of documents and persons related to the principles of confidentiality and inviolability and identifies the problems of maintaining confidentiality in the practice of international commercial arbitration. It pays special attention to the interrelationship between the principle of privacy and the interests of the state. Also, it gives a number of proposals aimed at eliminating existing shortcomings in the legislation on these cases. The purpose of the research work is to identify the participants in the arbitration proceedings, including exploring the scope of confidentiality that is binding on the parties and their representatives, the arbitral tribunal, arbitral institutions, and third parties such as witnesses and experts. The presumption of confidentiality exists in international commercial arbitration. However, case law is inconsistent regarding the purpose of arbitration and its interaction with confidentiality. This study focuses on the concept and function of confidentiality in relation to international commercial arbitration. The subject of the research work is the legal significance of the application of the principle of confidentiality in international commercial arbitration in the arbitration process, as well as international conventions on international commercial arbitration, national and foreign experience, judicial practice, theoretical knowledge, research, conceptual approaches, problems, and the scientific and theoretical views used in their study.

Legal prerequisites for consideration and settlement of disputes in international commercial arbitration

The article examines the problematic issues of the grounds for litigation in international commercial arbitration. The urgency of this topic is due to the need for a lack of clear definition of the prerequisites for resolving disputes, as well as the procedure for their use in the practice of international commercial arbitration. In addition, the problematic aspects of dispute resolution in international commercial arbitration are analyzed and procedural measures for their resolution are identified.
 To achieve this goal, the material preconditions for dispute resolution in the ICA were studied and the procedure for resolving disputes was determined. The preconditions for transferring a dispute to international commercial arbitration, which are the advantages of arbitration compared to state courts, are, first of all, that it provides a more acceptable, accessible and simpler procedure for resolving disputes compared to state courts. In other words, it is a procedure established by the parties to the dispute, which in general can be adequate and adapted to make agreed decisions. Even when the parties turn to a permanent commercial arbitration, which has its own rules of procedure, they can provide for arbitration. The UNCITRAL Arbitration Rules of 2010 stipulate that when the parties decide to submit disputes to arbitration in accordance with these Rules, they shall be considered in accordance with these Rules.
 The study identified a number of major risks and difficulties faced by the party in applying to a state court: ignorance of the procedure required for a foreign state court; the obligation to conduct the proceedings in the language of the court’s location; the existence of several instances and the procedural formalism that occurs when applying to the general courts; judges do not always have the appropriate competence to deal with disputes arising from foreign trade; gathering evidence and evaluating it on the basis of the national legal system.
 The study concluded that the benefits of international commercial arbitration, in the presence of prerequisites for litigation, give much better benefits for litigation, which forms its authority among the relevant categories of legal entities and individual entrepreneurs.

The Influence of Quarantine COVID-Restrictions Related and Policy of Digitalization on Dispute Resolution via International Commercial Arbitration

The article deals with the study of the latest challenges for the institute of international commercial arbitration in connection with the pandemic of coronavirus infection COVID-19 and to the study of the impact of the concomitant introduction of digitalization tools at different stages of arbitration. Special attention is paid to establishing the reasons for the smaller negative impact of the pandemic on the institutions of alternative dispute resolution compared to the system of state justice. The paper proves that at the level of arbitration institutions there is a coordinated and balanced response to the challenges of the pandemic, which is expressed in the assurance of business and, consequently, potential parties in the dispute, in continuing the proper functioning of the institution and its administration even in the latest conditions, and in the development of guidelines and similar documents, the implementation of virtual arbitration practices. The measures taken by the leading arbitration institution of Ukraine — ICAC at the Ukrainian CCI in response to quarantine restrictions were identified, and the prospects for further development of international commercial arbitration in Ukraine and the world in the coming years were analysed. The author summarizes that the analysis of innovations and prospects studied in scientific work regarding the further evolution of digitalization tools in the arbitration process, allows us to agree with the forecasts proposed in the report of ICAC at the Ukrainian CCI for 2020. At the same time, it is possible to add that already introduced mechanisms, such as document-only production, fast-track arbitration, Med-Arb, etc., will be more widely used in the practice of international commercial arbitration. It is further argued that even after the end of the COVID-19 pandemic, the changes it has brought and the virtualization and digitalization of the arbitration process will not lose popularity and become firmly entrenched in international commercial arbitration, reforming the institution to integrate modern technological progress realities at all stages of arbitration.

Discovery Under § 1782 in International Commercial Arbitration: Recent Developments From A ‎Comparative Perspective

Title 28 U.S.C. § 1782 empowers American federal courts to order persons in the United States ‎to give testimony or to produce documents “for use in a proceeding in a foreign or international ‎tribunal.” However, disagreement persists, both in the courts and among commentators, as to ‎whether the phrase “international tribunal” in § 1782 includes “private” international commercial ‎arbitral tribunals, and the issue is now before the United States Supreme Court. The circuit split ‎that has emerged in this regard and the lack of a uniform approach across the United States have ‎created uncertainty and unpredictability in international commercial arbitration practice, which ‎are not conducive to orderly international commercial transactions and dispute resolution. In this ‎article, I approach the debate from a comparative perspective that has thus far been underutilized ‎in the literature. Given that one of the main purposes of § 1782 is to promote comity and ‎cooperation among nations, I undertake a detailed examination of recent jurisprudential and ‎legislative developments in two jurisdictions — the United Kingdom and New Zealand — with ‎respect to judicial assistance in the taking of evidence from persons located in their territory for ‎use in private international commercial arbitration. Notwithstanding differences in their general ‎approach to discovery, these, and other, jurisdictions are increasingly allowing for such judicial ‎assistance. Therefore, I argue that American courts should similarly interpret § 1782 to allow, in ‎principle, discovery in relation to private international commercial arbitrations. Courts should ‎then exercise their discretion in enforcing the provision in accordance with clear and uniform ‎criteria that will promote the goals of both § 1782 and international commercial arbitration and ‎prevent abuse and unnecessary judicial intervention. ‎

Cross-Border Contractual Obligations: Issues in Legal Qualification

When resolving cross-border disputes, the courts almost inevitably face the need for a legal qualification of the disputed relations. The legislation and legal practice in many countries of the world have developed traditional approach, according to which the legal qualification is carried out on the basis of norms of national state law (lex fori). The complexity of the process of legal qualification due to several reasons: the necessity of taking into account the content of foreign law, the existence of different mechanisms oflegal qualification recognized in different jurisdictions, but also the evolution of private international law. Atthe present time there has been a development of the institute of legal qualification, coupled with a deep modification processes of the entire system of normative regulation of cross-border relations. Thus, the emergence and rapid development of transnational norms, their recognition and increasingly active applicationin the practice of international commercial arbitration actualizes the potential of the autonomous qualification as another method of legal qualification in private international law. Practice of application ofthe method of the аutonomous qualification in the resolution of cross-border disputes by foreign courts and international commercial arbitration is analyzed in the doctrine of European private international law andfinds more and more supporters. This practice is most prevalent is in cross-border commercial disputes.The article taking into account modern trends of development of international trade law in relation to crossborder contractual obligations features the peculiarities of pre-qualification; qualification under applicable law; qualification in the application of the chosen law; qualification for recognition and enforcement of foreign judicial decisions/decisions of international commercial arbitration. The article examines the modern opportunities of commonly known methods of qualification by lex fori and lex causae, and the prospects and advantages of the autonomous qualification grounded here. The method of autonomous qualification can be based on the law of treaties, acts of non-state regulation, sources of lex mercatoria. Most likely atthe present time the application of the method of the autonomous qualification in the practice of international commercial arbitration, which corresponds to the recent trends. Transnational norms, the formationof which is actively conducted now, will have in the future a significant influence on the evolution of the process of legal qualification in private international law, especially in cross-border contractual obligations.

Simulated arbitration on-line; training law students in a multi-jurisdictional context

This project enables law students from different countries to participate in a simulated arbitration case on-line. The objective of this innovative e-training distance learning tool is to familiarize law students with law and practice of international commercial arbitration. International arbitration is more than another way to settle cross-border commercial disputes. It is a real forum where the law governing international economic relations is progressively elaborated, applied and enforced in a constantly changing world. Law students need to get themselves acquainted with this discipline, which is particularly adapted to the modern requirements of an increasingly globalized economy. Four Universities participated in the simulated arbitral proceedings using this tool: http://mockarbitrationonline.blogspot.gr/ The case selected was related to a multinational cross-border business transaction. Instead of using fictitious states (such as Utopia or Ruritania), specific countries were selected (such as Czech Republic, Ukraine and Greece), in order for students to apply the legal rules, which are actually in force in these countries.

Features of Arbitral Practice that Contribute to System-Building

The development in the practice of international commercial arbitration, it appears, is such that a convergence is emerging in terms of procedural similarities, practice of arbitral tribunals, and judicial approaches in setting aside and enforcing cases, irrespective of the legal seat. This has in turn molded the expectations of users and hence the revision and updating of institutional arbitration rules and national laws to meet these expectations. At the risk of stating the obvious, there are two universal and overarching principles that underpin the legality and efficacy of international commercial arbitration--parties' consent and the New York Convention, which may be aptly described as the constitutional framework of international arbitrations, for without them, the system of international commercial arbitration would not exist nor would its use be on the ascent. The other factor that gives international commercial arbitration its efficacy is the practice generally adopted by the experienced arbitrators in dealing with procedural, jurisdictional, or substantive (where awards are published) issues. This practices does not in any way form binding precedents or have formal jurisprudential weight, but decisions have strong persuasive effects in shaping subsequent decisions on similar issues by others, and some may argue that they will eventually form a system of customary laws. Through exchanges in international forums and discussions, experiences are shared (on an anonymous basis, needless to say) and the practice adopted can be criticized, enhanced, and gradually formulated systematically into These norms have, it is submitted, two further far-reaching effects. First, they create an expectation in the users about how issues would generally be dealt with, and in turn reinforces the adoption of such norms. Second, they create the basis on which institutional arbitration rules are updated and national arbitration laws revised. The third important element to the institution of international arbitration is the legal seat itself. The importance of the choice of seat in relation to the process of arbitration itself is perhaps somewhat overstated. The convergence of arbitration laws (manifested generally through the adoption of the UNCITRAL model law), and institutional rules and practice of tribunals in international arbitrations have rendered the differences in the arbitration process in different seats less significant. Yet the distinction in the national laws on recourse against awards and judicial approaches to the same remains significant, and it is that which, it is submitted, ought to be the consideration for the choice of the seat. There are generally three types of approaches in respect of recourse against awards: UNCITRAL model law jurisdictions such as Hong Kong where the only recourse is to set aside on basis of procedural defects; England and Wales where, apart from setting aside on procedural defects, the court also retains a right to confirm, set aside, or vary an award if it contains an error of law, irrespective whether it is a domestic or international award; and jurisdictions which make a distinction between domestic and international arbitrations, such as in mainland China and Singapore, where international awards can only be set aside on procedural grounds, and domestic awards can be reviewed by a national court on errors of law. The choice of seat may therefore depend on whether a party prefers the preservation of the correctness of the substantive law and its jurisprudential development by the national courts of the seat, or simply prefers finality of awards. The factors identified above interact to enhance and reinforce the convergence of the system of international arbitrations. Some examples and comments are set out below. In Plakito Inv. Ltd. v. Klockner East Asia Ltd., (1) the CIETAC tribunal received a tribunal's expert report and relied on it to render an award without giving the parties an opportunity to view or comment on it. …

Confidentiality at risk: The interdiscursive construction of International Commercial Arbitration

The global demand for information has brought in new developments in the publicity of discursive practices of many professional areas. This study takes the professional practice of International Commercial Arbitration, a mechanism to resolve business disputes outside the courts and traditionally considered as private, to explore the process of resemiotization of information, from the strategies used by corporations in their press releases to the news reports published by national and international media. It takes the theoretical concept of interdiscursivity in critical genre analysis to show that texts are the result of a combination of a very complex range of resources brought about by genres, professional practices and professional cultures, which derive not only from the ‘local’ representation of the transnational arbitration process, but also from the different corporate identities and their ways of coping with the increasing publicity of the facts of arbitration.

Reference to the UNIDROIT Principles in International Commercial Arbitration Practice in the Russian Federation

The UNIDROIT Principles of International Commercial Contracts (hereinafter: the UNIDROIT Principles) have become quite familiar to the Russian legal and business communities since the full text of both the 1994 and 2004 editions, with comments and illustrations, was translated into Russian shortly after its publication in the official languages. Over the years, the UNIDROIT Principles have frequently been used by Russian business people in negotiating international commercial contracts and they have also often been used as an authoritative source of information about the rules of modern commercial practice in the legal orders of countries with a developed market economy. Also, the UNIDROIT Principles have repeatedly been used as a source of reference in legislative work aimed at the further development of the Russian law on contracts, primarily the rules contained in the Russian Civil Code. This is because in recent years, a great many publications have appeared in the Russian legal literature dealing with the UNIDROIT Principles as the subjectmatter of scientific research. The academic analysis has tended to concentrate both on the significance of the UNIDROIT Principles as a source of rules of law reflecting the modern lex mercatoria and on the substantive contents of the rules themselves in the context of comparative law studies. This broad use of the UNIDROIT Principles in Russian commercial practice where it relates to foreign trade transactions could also explain why the application of the UNIDROIT Principles has become quite evident lately in settling international commercial disputes through arbitration in Russia. References to the application of the UNIDROIT Principles are not infrequently found in the awards rendered by the International Commercial Arbitration Court at the Russian Federation Chamber of Commerce and Industry

Assessment of the New UNCITRAL Arbitration Rules of 2010

UNCITRAL Arbitration rules of 2010 made arbitration provisions up to date with the modern practice of international commercial arbitration. 2010 Rules have reflected new developments and change in the international commercial arbitration since the adoption of the UNCITRAL Arbitration Rules of 1967. However, in order to keep the rules short, efficient and attractive to the business community, it was impossible to deal with all the issues which could arise and cause problems in the arbitral proceedings. Furthermore, it can be argued that in order to retain popularity of the UNCITRAL arbitration rules, they should be revised more frequently. This article will focus on the main changes made in the rules of 2010 and compare it with it’s older edition of 1967.

An Examination of the Law and Practice of International Commercial Arbitration in Brazil

This article focuses on the legal framework of international commercial arbitration in Brazil. It provides an examination of the changes introduced by the Brazilian Arbitration Law, the international conventions ratified by Brazil and the case law that is being developed in the country in relation to arbitration. Brazil used to be known for its remarkable hostility towards arbitration; however, this is no longer the case. The legal framework of international commercial arbitration in Brazil has gradually changed since the 1990s, when Brazil approved a modern arbitration law. Since then, several steps have been taken to enable Brazil to become a real player in the international arbitration ‘field’.

Professional reasoning, legal cultures, and arbitral awards

ABSTRACT: The practice of international commercial arbitration draws together a diverse range of participants (arbitrators, counsel and parties), from a wide range of linguistic and cultural backgrounds. In the face of this diversity, there have been attempts to standardize and harmonize arbitration procedures by combining procedures from different legal traditions, yet the potential for intercultural communication difficulties remains. This paper evaluates the influence of different legal cultures in arbitration, drawing on a comparative analysis of the discourse of professional reasoning in International Chamber of Commerce (ICC) arbitral awards, supported by interviews with stakeholders in arbitration, and professional guides on award writing. The findings show that reasoning is considered to be an important element of an arbitral award, in order to facilitate compliance with and enforcement of the award. Furthermore, cultural variation is evident in the awards, with different conventions adopted especially in the selection and integration of legal authority, and in the practice of code-switching observed. The study highlights the importance for arbitrators of developing intercultural communicative competence, in order to operate effectively in a multilingual and multicultural environment.

Understanding Discovery in International Commercial Arbitration through 'Behavioral Law and Economics': A Journey Inside the Minds of Parties and Arbitrators

Several authors and practitioners have bemoaned the fact that in the current international commercial arbitration practice, there is an excessive use of discovery. International arbitration seems to be losing its cost-effectiveness and attractiveness, in comparison to court litigation. This study explores the reasons for this present tendency, and argues, as a tentative thesis, that the overuse of discovery is a consequence of cognitive illusions on the part of parties as well as arbitrators. Based on insights provided by “behavioral law & economics” studies on cognitive psychology and human behavior, it will be argued that arbitrators have failed to properly exercise their role as the gatekeepers of discovery. More specifically, it will be shown that heuristics and biases affect their decision-making process when it comes to discovery.In order to restore arbitration’s original efficiency and fundamental values, this study suggests that arbitration institutions should more strictly regulate the use of discovery, and at the same time, reduce arbitral discretion. The analysis is organized as follows. Part I provides a description of the originally limited scope of discovery in international arbitration, and the original intuitions that lie behind the procedural discretion granted to tribunals. Part II verifies whether the idea of limited use of discovery in arbitration is consistent with a cost and benefit analysis. To conduct this analysis, traditional “law and economics” theory will be used together with insights from “game theory” and “behavioral law and economics”. Part III examines the causes of the current tendency toward allowing broad discovery in international arbitration. This analysis will focus on the decision-making processes of arbitrators, arguing that they could be affected by “bounded rationality”. Part IV provides some possible solutions for restoring the original values of international arbitration, and offers concluding remarks.

Book Review: The Principles and Practice of International Commercial Arbitration by Margaret L. Moses

No AccessBook Review: The Principles and Practice of International Commercial Arbitration by Margaret L. MosesKristy HainingKristy Haining Victoria University Law School, Melbourne, Australia Published Online:December 1, 2008pp 107-108https://doi.org/10.1504/IJPL.2009.021516PDF ToolsAdd to FavouritesDownload CitationsTrack Citations Share this article on social mediaShareShare onFacebookTwitterLinkedInReddit AboutAbstractThe Principles and Practice of International Commercial Arbitration, by Margaret L. Moses. Cambridge, Cambridge University Press, 2008. 358pp. ISBN-13: 9780521685627.Keywordsbook review Previous article FiguresReferencesRelatedDetails Volume 2Issue 12009 ISSN: 1753-6235eISSN: 1753-6243 HistoryPublished onlineDecember 01, 2008 Keywordsbook reviewAuthors and AffiliationsKristy Haining1 1. Victoria University Law School, Melbourne, Australia PDF download

The Effect of State-endorsed Arbitration Institutions on International Trade

During the past two decades, the study of new institutional economics (NIE), with a focus on international and domestic legal-economic institutions, has made a considerable contribution to the unde...

Arbitration and the Modernisation of EC Competition Law

Do arbitrators have the power to apply Article 81(3) EC and grant an individual exemption in the event they find an agreement to come within Article 81(1) EC? Before Modernisation, the answer was clearly negative. Under the old regime of EC competition law this particular power was the exclusive domain of the European Commission. The Modernisation Regulation and the accompanying Modernisation Package – consisting of a Commission Regulation, four Notices and two Guidelines – came into force on 1 May 2004. One of the key changes of Modernisation was that the national courts of the Member States were given the power to apply Article 81(3) EC and grant individual exemptions from the prohibition of Article 81(1) EC. But do arbitrators have this power as well? The Modernisation Regulation only mentions the national courts. It is silent on arbitration. This conspicuous silence has caused varying reactions. In this contribution I will discuss the consequences of the Modernisation Regulation for the practice of international commercial arbitration.

The role of transnational online arbitration in regulating cross-border e-business – Part II

Part II 4.4 Emergent principles of Internet governance, 4.5 Co-regulation, 4.5.1 Non-binding ODR, codes of conduct, trustmarks and self-enforcement, 4.5.2 Transnational online arbitration lex informatica and international enforcement – 5. Co-regulation centred on transnational online arbitration: 5.1 The proposed system, 5.2 Benefits, 5.2.1 Use of ODR, 5.2.2 Central role of transnational online arbitration, 5.2.3 Adoption of a co-regulatory approach, 5.3 Drawbacks, 5.3.1 Apparent drawbacks of the consensual character, 5.3.2 Transnational online arbitration, 5.4 Operation, 5.4.1 OADR, 5.4.2 Transnational online arbitration, 5.4.3 Judicial support and supervision, 5.4.4 Enforcement of ODR outcomes, 5.4.5 Publication of ODR outcomes, 5.4.6 Consumer disputes – 6. Conclusion. This article suggests that traditional legal solutions based on localisation and territoriality are inappropriate for cross-border e-business transactions. The instantaneous, ubiquitous and truly international Internet necessitates solutions with similar qualities. The elements of a plausible solution can be found in three relatively recent developments: the online dispute resolution (ODR) movement; the emerging principles of Internet governance; and the concept of co-regulation. The catalyst, however, is a concept rooted in the theory and practice of international commercial arbitration. This article argues that the optimum solution is a truly international, decentralised, multi-stakeholder, multi-level and multi-instrument co-regulatory system based on ODR and centred on transnational online arbitration with the role of the courts limited to the guardianship of public policy.

The role of transnational online arbitration in regulating cross-border e-business – Part I

Part I 1. Introduction – 2. Since we have a hammer, the problem had better be a nail – 3. The problem is not a nail: 3.1. Unaddressed challenges, 3.1.1. Technological solutions, 3.1.2. International initiatives towards modernisation of private international law, 3.1.3. Convergence or harmonisation of national e-business laws, 3.1.4. OADR and online arbitration – 4. The hammer is not the only tool: 4.1. ADR and arbitration, 4.2. ODR, 4.3. Supportive and supervisory function of the courts. This article suggests that traditional legal solutions based on localisation and territoriality are inappropriate for cross-border e-business transactions. The instantaneous, ubiquitous and truly international internet necessitates solutions with similar qualities. The elements of a plausible solution can be found in three relatively recent developments: the Online Dispute Resolution (ODR) movement; the emerging principles of internet governance; and the concept of co-regulation. The catalyst, however, is a concept rooted in the theory and practice of international commercial arbitration. This article argues that the optimum solution is a truly international, decentralised, multi-stakeholder, multi-level and multi-instrument co-regulatory system based on ODR and centred on transnational online arbitration with the role of the courts limited to the guardianship of public policy.

Law and Practice of International Commercial Arbitration by Alan Redfern, Martin Hunter, and Nigel Blackaby

Law and Practice of International Commercial Arbitration by Alan Redfern, Martin Hunter, and Nigel Blackaby

Non-Signatories and International Arbitration in the United States: the Quest for Consent

For many years arbitration practitioners have grappled with the problem of what to do with a ‘non-party’ – or more particularly a ‘non-signatory’1 – to the arbitration agreement that is nevertheless integral to the resolution of the dispute that has arisen. To take a simple example, what of the corporate affiliate that has been assigned certain rights and obligations under a subsequently disputed contract: can the affiliate assignee be compelled to arbitrate; can it commence arbitration itself and can it somehow intervene in an arbitration initiated between the original contracting parties? At the heart of these questions lies the widely-accepted principle that arbitration is by its nature consensual. However, in the absence of an agreement containing an arbitration clause and bearing the affiliate assignee's signature, where does one look to find evidence of such consent to arbitration? Far from being merely theoretical, the questions raised by the aforementioned scenario are in fact highly relevant to the contemporary practice of international commercial arbitration. Disputes involving non-signatories are inevitable in the context of modern international business transactions that typically involve complex webs of interwoven agreements, multilayered legal obligations and the interposition of numerous, often related, corporate and other entities. Accordingly, while the non-signatory ‘problem’ has long been associated with disputes arising out of bills of lading and construction sub-contracts, it is today to be found in such diverse contexts as arbitrations concerning reinsurance agreements, Internet-based software licences and investment treaties. Perhaps reflecting an increased awareness of this issue, there is a growing body of commentary on the topic.2 Bearing in mind the volume and breadth of these writings, this article does not attempt to produce an exhaustive analysis of all aspects of the treatment of non-signatories in international arbitration. Rather, focusing largely on the current position in the United States, …