Cross-border Dispute Resolution Research Articles

Sustainability and jurisdiction in the international civil litigation market

The sustainability of the global economy, particularly in response to the concerns of climate change, is an issue which impacts many different aspects of life and work around the world. It raises particular questions concerning globalised industries or markets which depend on long distance transportation for their function. This article takes as its focus international civil litigation – the judicial resolution of cross-border disputes – as a particular example of a globalised market in which sustainability considerations are presently neglected, and examines how this omission ought to be addressed. It proposes a modification to English law which aims to ensure that jurisdictional decisions by the English courts take into account their environmental impact – that is to say, the environmental impact of the selection of a particular forum. The article also considers the implications of adopting this change on the position of the English courts in the global litigation marketplace, arguing that the effects are likely to be limited, and it could have an incidental benefit in promoting the development and adoption of communications technologies in judicial dispute resolution.

Dispute Resolution in the Market for Insurance Distribution as one of the Tasks of Supervisory Authorities – Selected Issues

The purpose of this article is to indicate some of the tasks of microprudential supervision authorities (EIOPA and KNF) in the field of out-of-court dispute resolution on the insurance distribution market, which may directly concern customers of insurance distributors. The second part of the study will present the tasks of microprudential supervision authorities that solve problems on the insurance distribution market by indirectly influencing the customer and by ensuring customer security – for example EIOPA cross-border dispute resolution.

Islamic commercial arbitration and private international law: mapping controversies and exploring pathways towards greater coordination

This article maps the main fault lines between the concerns for Shari’ah compliance, which are central to Islamic commercial arbitration and the categories of private international law. While issues such as applicable law, public order and the enforcement of foreign arbitral awards are routinely addressed in private international law, questions remain as to the extent to which the latter is able to accommodate additional concerns, which would be relevant for Shari’ah compatibility of an Islamic commercial arbitral award. This study is based on the qualitative methodology that is standard in legal analysis. This methodology consists, first, of desk-based research to compare the formulations found in a variety of textual sources: national and international legal sources, doctrinal opinions and the rulings of different courts. Second, the implications of different formulations are drawn out by considering actual and possible ‘limit cases’ in which the different wordings would translate into incompatible solutions. Third, proposals are made to help address the ensuing incompatibilities. Establishing a common operational ground between international private law and Shari’ah compliance in commercial arbitration would enable the two systems to function in a more coordinated fashion, reducing the legal uncertainties that are otherwise present when they are treated as parallel, mutually incommunicable systems. Through a focus on the specific misalignment between Islamic commercial arbitration and private international law, our article makes targeted suggestions that would materially address some of the concerns posed by the increasing internationalisation of Islamic finance—and by its attendant need for cross-border dispute resolution respectful of the ethical goals of Shari’ah compliance.

Cross-border dispute resolution in Europe: looking for a new “normal”

We live in an increasingly digitally mediated, platform-based environment characterised by remote working, schooling, shopping, and socialising, where national borders blur and geographical location importance decreases. One of the main effects of this transformation is the growing relevance of cross-border (actual and potential) disputes and, therefore, the need for adequate means to address and resolve them. Geographically bounded forms of dispute resolution based on national justice systems, courts, and independent judges have shown their limits to face the new challenge. Building on Canguilhem’s work on the norm, normal and pathological concepts, the paper explores the European Union’s attempt to provide adequate cross-border dispute resolution mechanisms through traditional justice means, showing achieved results and limits. The paper then explores the increasing role of dispute resolution mechanisms integrated into platforms, such as Amazon, eBay and Booking, that bring together service-and-goods providers and buyers/users. These platforms 1) act as third parties in the adjudication of controversies and 2) deploy crowd-based adjudication and enforcement instruments.

Quo Vadis Consumer Dispute Resolution? UK & EU cross border consumer dispute resolution in the post Brexit landscape

The United Kingdom’s exit from the European Union challenges the existing framework for cross border consumer dispute resolution and exacerbates the negative effect of the EU’s harmonisation approach in this area. Both EU and UK consumers face an uncertain future after the transition period. This paper will analyse and evaluate key challenges to UK and EU consumer cross border dispute resolution after the transition period ended on 31 December 2020. The paper will consider procedural impediments to UK consumers enforcing consumer rights against EU/EEA traders as well as to EU consumers enforcing rights against UK traders. The paper will also consider the jurisdictional impact of UK’s status and its effect upon the reciprocal enforcement of consumer court judgments/ADR decisions between the EU and UK. Finally, the paper suggests that a Lugano+ approach would help to mitigate the impact of the impediments to effective consumer dispute resolution between EU and UK entities. In doing so, it first takes a preliminary look at the existing paradigm of cross border cooperation in consumer dispute resolution. The chapter also includes some thoughts on the normative clashes facing the creation of a new relationship in this area.

Online Settlement of Cross-Border Disputes: Architecture of the Regulatory Environment for Consumer Disputes (European Union Experience)

The increasing complexity and digitalization of cross-border relations are an unconditional stimulus for the development and popularization of online dispute resolution mechanisms. The paper examines the European Union experience in regulating modern online mechanisms for resolving consumer disputes and attempts to determine the hierarchy of regulatory acts in relation to online resolution (settlement) of cross-border private law disputes. The author analyzes the features of the European approach to regulating the system of online resolution of crossborder disputes in order to determine the possible vector of development of national legislation as a condition necessary for building and ensuring the functioning of an effective system. The paper notes the advantages and disadvantages of the European system of online settlement of cross-border disputes with the participation of consumers. It concludes that it is necessary to resolve the issue of the applicability of the norms of existing treaties, adapt national legislation to the specifics of online dispute resolution, as well as ensure the possibility of considering cross-border disputes with consumer participation in accordance with standardized rules in order to simplify the dispute resolution procedure and build trust in the online system.

Recognition and enforcement of judgments between China and the Caribbean: reflections from the perspective of Caribbean offshore financial centres

Given that a substantial number of cross-border investments related to China involve companies registered in Caribbean offshore financial centres, the recognition and enforcement of judgments between China and Caribbean offshore financial centres directly affect the relevant cross-border dispute resolution. Effective dispute resolution is of great significance not only to Caribbean offshore financial centres’ offshore financial business, but also to China’s attraction of foreign investment. However, as yet, no effective mechanism exists for addressing the mutual recognition and enforcement of judgments by China and Caribbean offshore financial centres. In light of the liberalisation of Chinese rules in this field, China and Caribbean offshore financial centres should seek ways, including signing international treaties, building consensus building, and promoting test cases, so as to promote the recognition and enforcement of judgments based on the cooperation platform under the Belt and Road Initiative.

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...

Problems of unification in the shpere of online resolution of cross-border disputes

Problems of unification in the shpere of online resolution of cross-border disputes

Cross‑Border Mediation: Towards a Balanced Framework for Cross‑Border Dispute Resolution in the European Union

This paper takes the entry into force of the Singapore Convention on Mediation on 12 September 2020 as an opportunity to reconsider whether the European Union has reached its once ambitious goal to create a balanced relationship between mediation and litigation in cross-border disputes. After a brief overview of the current legal framework for cross-border mediation in the EU in the first section, the meaning of the concept of a balanced relationship and its implications for the regulation of mediation in cross-border disputes are analysed. Starting with the observation that the use of cross-border mediation is still very limited, this second section argues that attempts to establish a balanced relationship in quantitative terms are misguided. Instead of attempting to correct alleged decision deficits by the parties to a dispute, the paper emphasises the regulatory responsibility of European legislators to create a level playing field for different cross-border dispute resolution mechanisms. In this respect, the third section identifies the surprising absence of private international law rules in the EU’s mediation framework as a structural disadvantage of mediation, as compared to litigation and arbitration. The last part of the paper examines in detail the interaction between mediation and the Brussels Ia Regulation to provide specific examples of legal obstacles to cross-border mediation and potential ways to overcome them.

ЗНАЧЕНИЕ ТЕОРИИ ДЕЛОКАЛИЗАЦИИ ДЛЯ РАЗВИТИЯ ФРАНЦУЗСКОГО ЗАКОНОДАТЕЛЬСТВА О МЕЖДУНАРОДНОМ КОММЕРЧЕСКОМ АРБИТРАЖЕ

The notion of delocalisation of international commercial arbitration has recently drawn increasing attention from Russian and foreign scholars. The main problematic of scientific discussions relates to the question of how closely international commercial arbitration is related to the legal order of the seat of arbitration. The emergence and development of the theory of delocalisation of international commer-cial arbitration is inextricably linked to the French legal science. French scientists stand at the origins of this theory. Besides, French law and jurisprudence have been significantly influenced by the theory of delocalisation of international commercial arbitration. The following provi-sions of the French legislation provide the most significant examples. First, article 1511 of the French code of civil procedure constitutes a basis for the use by arbitrators of the method of direct choice of law (“voie directe”). This implies that arbitrators do not have to apply any conflict of laws rules. Therefore, French law provides for a broad autonomy of arbitrators in the choice of law, while at the same time reducing the link between arbitration and national law, including the French law. French law is thus in perfect harmony with the concept of delocalisation of international commercial arbitration. Second, it is worth mentioning that the French code of civil procedure contains a limited number of grounds for refusal of recognition and enforcement of foreign arbitral awards. This particularity permits to ensure the highest efficiency of international commercial arbitration, to maintain an arbitration friendly approach at the stage of recognition and enforcement of foreign arbitral awards, as well as to recognise and enforce arbitral awards that have been set aside at the seat of arbitration. This corresponds to the idea of delocalisation of international commercial arbitration. Third, the influence of the delocalisation theory on the French legislation is also reflected in the scope of international competence of the French supporting judge, who can act in cases where one of the parties incurs the risk of denial of justice. This means that the French sup-porting judge is entitled, for example, to nominate an arbitrator if one of the parties fails to do so, even if the dispute does not have any objective links to France. The features of the French legislation on international commercial arbitration examined above prove that it is impacted by the theory of delocalisation of international commercial arbitration. The recognition in legal science, law and court practice of the autonomy of inter-national commercial arbitration from national legal orders contributes to the growth of attrac-tiveness of Paris as a place of cross-border dispute resolution.

Cross-Border Civil Litigation in the EU: What Can We Learn from COVID-19 Emergency National e-Justice Experiences?

As COVID-19 second wave spreads around Europe increasingly forcing Member States to deploy restrictive measures aimed at slowing down its diffusion and protect the people’s health and well-being, reflection on the first wave emergency measures and experiences allow to face the current situation better, but also plan for the future. Court based dispute resolution has been one of the areas affected by the pandemic. As in many other sectors, information and communication technologies initiatives have been carried out to allow the systems to keep functioning. ICTs are no news in the justice domain. They have been broadly introduced in the courts to support interactions between court and courts users in the last 30 years. At the same time, remote forms of litigation, especially in relation to the hearings, have still been the exception before the current emergency. In this perspective, the emergency has provided a strong push to support remote justice service provision and to explore possibilities to reconfigure available tools in order to permit remote working and legal communication.While most of the experiences have been carried out at national level, they may provide the ground for rethinking cross-border judicial procedures. Building on this, after describing the current EU cross border judicial services situation, this paper explores EU Member States e-justice COVID19 emergency measures and attempts to stimulate the discussion on their potential for innovation in cross border judicial proceedings.

Singapore Convention in Light of China’s Changing Mediation Scene

The Singapore Convention on Mediation (also known as the United Nations Convention on International Settlement Agreements Resulting from Mediation, or the “Singapore Convention”) is a new Convention developed by the UNCITRAL to provide a uniform and efficient framework for the cross-jurisdictional recognition and enforcement of mediated settlement agreements. Although the Convention has yet to come into force, it has already been expected to greatly improve and promote the use of mediation in commercial settings, in domestic and cross-border contexts. This article offers some China-specific analytics by taking a look at the likely impact of the Singapore Convention in three areas, mediation law, the international commercial court, and the Belt and Road Initiative, and discusses why the current legal environment in China provides some excellent opportunities for mediation to be more widely adopted in China following signing of the Convention. It concludes that the Singapore Convention will elevate the status of mediation to one of the top cross-border dispute resolution mechanisms in China. However, further observations need to be conducted to ensure continuous development of mediation in China will not undermine a rule-based legal infrastructure.

Shanghai-London Stock Connect: Operating Mechanism, Opportunities, and Challenges

Shanghai-London Stock Connect (SLSC) is an innovative cross-border financial markets listing and trading mechanism linking Chinese stock market with its British counterpart. It allows Chinese public companies to issue Global Depository Receipts (GDR) to be traded on the London Stock Exchange. Similarly, UK-listed companies can issue Chinese Depository Receipts (CDR) to obtain a secondary listing on the Shanghai Stock Exchange. SLSC enables British and international investors to purchase the shares of some of the best companies in the world’s second largest economy. The market scale of GDR amounts to $2.9 trillion while the size of the CDR market is predicted to exceed $800 billion, which could generate substantial revenues for investment banks and city law firms. The threshold of issuing either GDR or CDR is relatively high as issuers have to have a minimum market capitalisation of RMB 20 billion (US$2.92 billion). More than 260 of the 1,500 Shanghai-listed companies will be potentially eligible to participate in the project. On 17 June 2019, Huatai Securities, one of China’s largest brokerages, has become the first Chinese public company to be dual-listed on the LSE via the latest SLSC. Huatai raised $1.7 billion from selling 82.5 million GDRs to international investors. HSBC is said to be the first UK company to apply for a CDR listing in Shanghai. SLSC has raised multiple technical and regulatory challenges in relation to time difference, information disclosure, investor protection, cross-border financial supervision, as well as cross-border dispute resolution.

Resolving Disputes in a Lawless World

In this article, the author discusses the larger context of cross-border dispute resolution with which the EU’s directive on dispute resolution must contend.

PRIVATE INTERNATIONAL LAW IN THE DEVELOPMENT OF INFORMATION AND COMMUNICATION TECHNOLOGIES

The process of globalization, the development of information and communication technologies, networking are changing society dramatically and, as a result, its superstructure — law. International private law, by virtue of its own subject matter and special methodology, is at the forefront of the corresponding changes. The paper examines the problems of defining the concept of territorial sovereignty in the non-territorial information space that are of serious importance in relation to private international law. Its principles are the general principle of the sovereign equality of states, acting as a general principle for private international law, and a special principle of the sovereign equality of national law of states. The problem of the realization of the territorial nature of the conflict of attachment formulas and the grounds of international jurisdiction in relation to a certain segment of the extra-territorial information space is posed. The issue of conditionality of the adaptation of the principles and methodology of legal regulation of public relations in the conditions of digital technologies by the need to understand the conditions and boundaries of the implementation of sovereignty, the jurisdiction of the state in the information and communication space is investigated. The processes comprehended within the framework of the science of international private law are to some extent relevant for other branches of law. This paper analyzes such indicators of current changes in the legal paradigm as the impact of information and telecommunication technologies on the development of private international law, the place and increasing importance of non-state regulation in the process of streamlining cross-border private law relations, and the development of non-state systems for resolving cross-border disputes. The authors touch upon the problems of the use of blockchain technologies and the protection of intellectual property in cross-border private law relations; private adhocracy rulemaking, the formation of various social phenomena in the key lex mercatoria, the influence of international commercial arbitration, online platforms on the formation of current trends in the field of resolution of crossborder disputes, etc.

Role of Arbitration in the Resolution of Tax Disputes

One of the major issues in the globalization of commercial transactions is the issue of taxation. Despite the execution of Double Taxation Treaties (DTTs) by most countries and the enactment of Conventions by world Organizations, sovereign states are still struggling with amicable resolution of cross-border taxation disputes. This article discusses the nexus between taxation and arbitration, and subsequently the various issues affecting resolution of cross-border disputes involving taxation, particularly in relation to arbitration.

‘Private International Law in a Post-Brexit UK: The Role of Residual Jurisdiction and Forum Non Conveniens’

International jurisdiction is fundamental to the effective resolution of cross border disputes. Brexit invites focus on the scope and function of residual jurisdiction. These rules reflect national values whilst managing transaction and litigation risk. The article considers the utility of English and Scottish residual jurisdiction to civil judicial cooperation in a post Brexit UK. Whilst Scottish rules are more closely aligned to the form and content of Brussels I Bis Regulation, the English approach enables flexibility to new forms of actions. in a future where EU private international law’s direct influence will shift, the fitness of these rules and the court’s role in determining forum non conveniens will increase.

Digital Single Market as the new world to the European Union: repercussions in social and institutional regulatory structure – the universal service and the Body of European Regulators for Electronic Communications’ (BEREC) redefinition

Digital Single Market is the new world in the EU and it is perceived as primary public interest because it was one of the ways the EU found to become more financially attractive and better suited to innovation. To accomplish that, several legal solutions appear to be unsuitable for the present time EU is living in. Concerning electronic communications, its legal and regulatory framework needed to be recasted and a new Electronic Communications Code proposal was made by the European Commission. Among many innovative solutions, it aims at redefining EU universal service, to update it to connectivity solutions of our time, and at revising the Body of European Regulators for Electronic Communications’ role, granting it further competences on crossborder dispute resolution and articulation between European institutions and national regulatory authorities. These dimensions rethink both social and institutional regulatory framework and this text wants to understand what their strengths and weaknesses are.

Cross-border litigation in England and Wales

In the pre-Brexit era, England has established itself as one of the dominant jurisdictions for the resolution of cross-border disputes in the European Union (and the world). The legal regime in relation to private international law (PIL) in England and Wales has been significantly influenced by the EU PIL framework that was adopted at EU level. The United Kingdom decision to leave the EU might have significant implications for the parties’ access to justice in cross-border cases. This paper aims to devise a theoretical framework that is necessary to evaluate the potential impact of the UK’s decision to leave the EU on the private parties’ access to legal remedies. To this end, the author relies on empirical (qualitative) data that was gathered in 2015 and early 2016 in the context of the EU Private International Law: Legal Application in Reality (‘EUPILLAR’) project, indicating how the current EU PIL framework is functioning in England and Wales. An analysis of the way the parties’ strategies are devised under the current EU PIL regime helps in identifying the aspects which need to be considered, in order to set the research agenda and ascertain how the legal landscape in relation to PIL should be revised in the post-Brexit era.