Arbitration Rules Research Articles

Pemanfaatan Hukum Internasional dalam Penyelesaian Sengketa Laut China Selatan: Analisis dengan Pendekatan Doktrinal

The South China Sea is a strategic region of global significance, both economically and geopolitically. It serves as a major global trade route, with over 30% of global trade passing through it annually. Additionally, the South China Sea is rich in natural resources, including oil, gas, and abundant marine products. However, overlapping territorial claims among countries such as China, the Philippines, Vietnam, Malaysia, Brunei, and Indonesia have triggered prolonged geopolitical tensions. This study aims to analyze the role of international law, particularly UNCLOS 1982, as the primary framework for resolving these disputes. Using a doctrinal approach, the study examines primary legal documents, such as UNCLOS 1982, the 2016 Arbitration Award, and ASEAN agreements. Data shows an average of 15 annual conflicts in the South China Sea over the past decade, with a significant increase from 5 cases in 2014 to 25 cases in 2023. While UNCLOS 1982 provides a clear legal framework, non-compliance with arbitration rulings, such as China's refusal to adhere to the 2016 ruling, highlights weaknesses in enforcement mechanisms and sanctions. This study emphasizes that multilateral approaches based on international law, supported by regional mechanisms like ASEAN, have yet to achieve full effectiveness. The findings offer strategic recommendations, including reforming international sanction mechanisms and strengthening ASEAN frameworks to support conflict resolution and ensure sustainable stability in the region

The Legal Englishes of Dispute Resolution Rules

The UK Jurisdiction Taskforce (UKJT) has published the UK's first Digital Dispute Resolution Rules (DDRR), which are aimed at facilitating the rapid resolution of commercial disputes, in particular those revolving around digital technology. On the other hand, the London Court of International Arbitration (LCIA) has published an updated version of its Arbitration Rules (LCIAR). This paper is aimed at exploring the differences in the language and style of these two international documents. On the one hand, it addresses the sector-specific language used; on the other hand, it explores the general comprehensibility of the two documents to the layperson. Legalese elements, if any, are brought to the fore and focused on, as well as technical words, in order to explore how these documents are intelligible. The paper findings highlight that the LCIAR heavily rely on legalese, whereas the DDRR present several instances of plain English. The reasons why this is possible could be found in the fact that the former are drafted by legal experts such as arbitral organisations, whereas the latter are mostly written by business and financial advisers. Also, the DDRR clearly cater for the needs of the businesses' new (digital) requirements.

Гражданство частного инвестора: проблемы определения государственной принадлежности

The relevance of the article is conditioned by the necessity to study the problem of determining the national affiliation of a private investor in the presence of dual or multiple citizenship, issues of qualification of such person as a foreign investor, which directly affects the investor’s ability to initiate consideration of a dispute against the host state in the international investment arbitration court. The subject of the article is a study of the arbitration practice of considering investment disputes under the ICSID rules and the UNCITRAL Arbitration Rules, in particular, on the question of whether an investor with citizenship of the States parties to an investment agreement has the right to apply to the court with claims against the host state, provided that there is no condi-tion in the investment agreement resolving the issue of citizenship according to which criteria, when consider-ing investment disputes, arbitration courts apply the rule of effective citizenship in determining jurisdiction, and whether the investor should prove the existence of stronger ties with the state of origin. The topic reflects the problem of determining the investor’s state affiliation when the latter has two or more nationalities when con-sidering disputes arising from investment relations. The aim is to analyze the differences between the rules of ICSID and the UNCITRAL Arbitration Rules concerning the determination of an investor’s citizenship according to the principle of effective nationality, the implications for the competence of arbitration courts, and the conclu-sions regarding which provisions on establishing an investor’s state affiliation should be included in the in-vestment agreement, taking into account the ICSID rules, the UNCITRAL Arbitration Rules, and national legisla-tion governing citizenship issues. The methodology employed includes comparative, formal-legal, and analyti-cal methods.

International Arbitration in China: 2023 in Review

2023 was a year of progress for international arbitration in China, as there was positive activity in the Ministry of Justice, in the Courts, and in the arbitral institutes, each paving the way toward making China a more favourable venue for international arbitration. There were also encouraging developments abroad as several foreign court decisions recognized awards issued in China under the rules of Chinese arbitration institutions, demonstrating increasing global acceptance of awards issued in China by Chinese institutions, such as the China International Economic & Trade Arbitration Commission.With major amendments proposed to modernize its arbitration law, updates of key arbitral institute rules to be aligned with international practices, and judicial and policy measures in aid of arbitration, China has taken concrete steps to strengthen itself as a more modern international arbitration jurisdiction.

Pizza Hut L.L.C. v. Pandya: Exploring the Validity of Pre-Dispute Jury Waivers

This Note analyzes a 2023 Fifth Circuit opinion concerning whether a contractual pre-dispute jury waiver is enforceable utilizing the knowing and voluntary factors and when challenged under general fraud allegations. The Fifth Circuit incorrectly weighed two of the voluntary and knowing factors—conspicuousness and unequal bargaining power—to be in favor of enforcing the jury waiver when the facts of the case and prior case law prove otherwise. The Fifth Circuit should have first applied a historical analysis in analyzing a constitutional right, but the court was reasonable in applying the arbitration rule to jury waiver provisions because waiving a jury right compromises fewer constitutional rights than an arbitration clause.

Актуальные тенденции в законодательстве Китая о международном арбитраже

China did not adopt the UNCITRAL Model law in either version and its arbitration legislation often does not reflect the world-recognised practices of international arbitration. However, during the last few years, China has been softening its approach towards both international commercial and investment arbitration. The recent court decisions, adoption of the new Civil Procedure Law and proposal of the Draft Amended Arbitration Law signify gradual recognition of the concept of ‘seat of arbitration’ instead of relying on the domicile of the arbitration institution. Furthermore, Chinese courts have acknowledged the capacity of foreign arbitration institutions to administer disputes within mainland China — a significant shift from past practices where only Chinese arbitration commissions could administer arbitration proceedings in China under the Arbitration Law. This change is also reflected in the Draft Amended Arbitration Law. Another crucial legislative change is adoption of the Foreign State Immunity Law, which came into effect in January 2024. By enacting this law, China has shifted from absolute to restrictive immunity in disputes between a person or entity and a state. Thereby China allowed claims against foreign states arising out of commercial activities or international investment treaties to be considered in Chinese courts. Nevertheless, challenges remain in regards of recognition and enforcement of investment arbitral awards or conducting of investment arbitration in China. First, China’s reservation under the New York Convention 1958 limits recognition and enforcement of foreign awards to ‘commercial’ disputes, excluding investor-state disputes. Besides, it is discussed that China has not taken proper steps to recognise the ICSID awards as national ones for purposes of enforcement, even though it ratified the ICISD Convention. Furthermore, formally under the current Arbitration Law the investment arbitration is not possible. Finally, considering the latest legislative amendments, recent court practice and updated arbitration rules of Chinese arbitration institutions, it can be concluded that China has taken the pro-arbitration approach.

The US-China BIT: Enhancing Dispute Settlement Mechanism

This article critically examines the inadequacies of the International Centre for Settlement of Investment Disputes (ICSID) and the intricacies surrounding the divergent strategies employed by the United States and China in managing investor-state disputes. Given the lack of an explicit dispute resolution mechanism in the envisioned US-China Bilateral Investment Treaty (BIT), the paper advocates for a comprehensive strategy for shaping future agreements. It proposes integrating UNCITRAL Arbitration Rules as an alternative to ICSID; the inclusion of ad hoc Arbitration Panels is recommended for tailored resolutions; and the incorporation of alternative dispute resolution (ADR) mechanisms as pre-arbitration procedures is emphasized. This multifaceted strategy aims to address the deficiencies of a singular arbitration mechanism and foster a more adaptable and effective dispute resolution framework tailored to the specific needs of China and the United States, providing a balanced means of addressing the complexities inherent in investor-state disputes.

FEATURES OF THE SETTLEMENT OF INTERNATIONAL CYBER DISPUTES THROUGH ADR IN THE CONTEXT OF THE LEGISLATION OF THE BRICS COUNTRIES

This paper examines the comparative effectiveness of various alternative dispute resolution (ADR) methods in resolving international cyber disputes. Drawing on a review of academic literature, analysis of practical case studies and statistical data, it identifies key procedural strengths and limitations of arbitration, mediation, ombudsmen, and online dispute resolution for common cyber conflict scenarios. It concludes on the optimal tailoring of different ADR techniques for cybercrime, hacking attacks, data breaches, and e-commerce disputes. The paper proposes multiple innovations to enhance cyber ADR efficacy, including hybrid models, specialized procedural standards, and enforcement mechanisms. It discusses integrating ADR into national cybersecurity strategies using the BRICS platform as an example. The research aims to inform optimization of flexible, confidential, and technically expert out-of-court approaches to manage the proliferation of cross-border cyber disputes. Key findings show mediation’s utility for cybercrime across jurisdictions but need for law enforcement coordination. International arbitration is appropriate for cyber B2B disputes while ombuds aid consumer recourse. Early neutral evaluation assists cybersecurity breach diagnosis but requires enforcement. Tailored arbitration rules, substantively flexible guidelines, and incentivizing voluntary ADR adoption are advised.

Novi međunarodni privredni sudovi

In this paper, the author provides an overview of the main characteristics of international commercial courts, their composition and jurisdiction, as well as private international law instruments that ensure the recognition and enforcement of their decisions abroad. International commercial courts are national courts of international jurisdiction. They are established by individual states that aspire to be or become significant global centres for the resolution of commercial disputes. They are characterized by a certain degree of internationalization, reflected in their ability to conduct proceedings in the English language and in the origin of judges, who are, in some instances, foreign nationals. Some international commercial courts adjudicate cases according to common law rules, even though they are based in countries with legal systems based on continental law or Sharia law. The procedural rules before most of these courts incorporate elements of arbitral procedural rules and alternative dispute resolution methods. They generally have jurisdiction in commercial disputes with an international element, and they recognize a written choice-of-court agreement of the parties as the basis for international jurisdiction. In this regard, there is no requirement for any connection with the state where the court is based for valid submission to jurisdiction.

The 2022 ICSID Arbitration Rules: Modernizing International Investment Dispute Resolution

Abstract The new Arbitration Rules of the International Center for Settlement of Investment Disputes (ICSID), which came into force on July 1, 2022, replace the previous version in force since 2006. These rules seek to make the ICSID arbitration process more efficient and responsive, while maintaining the high standards that have made ICSID a respected forum for resolving investment disputes. The new rules reflect changes in international investment law and policy over the past decade, and also aim to address shortcomings of the previous system, such as lack of transparency and efficiency. New provisions have been introduced to simplify and speed up arbitration procedures, provide greater transparency, increase the legitimacy of arbitration processes and expand access to them. The new rules reflect the expectations of ICSID and its members for more efficient and transparent resolution of investment disputes and should facilitate the further growth of international investment and trade, as well as the resolution of disputes arising in connection with these processes.

Procurement Disputes Arbitration: Main Problems at the Present Stage

The relevance of the paper is predetermined by the study of the key problems of arbitration in the context of the specifics of public procurement at the present stage, namely, the problem of determining the appropriate criteria for the conclusion and validity of arbitration agreements. The purpose of the study is to critically evaluate the so-called non-arbitrability formula, established in contemporary court practice; to disclose the algorithm for the emergence of contractual relations as a result of competitive procurement procedures; to substantiate the legal force of arbitration clauses incorporated into contracts before arbitration rules are deposited by the arbitration institution. The author sees the objectives of the study in substantiating the fundamentally permissible arbitrability of contractual disputes in all segments of procurement relations (not only by direct order under the federal law, but also for the future, including contractual disputes in the field of state defense orders due to the variety of available transactions); in identifying factors contributing to the proper assessment of an arbitration agreement for its validity. Methodologically, the paper is based on a set of general scientific (analysis, modeling, analogy, hypothesis), private scientific (formal logical, systemic, functional) methods, and uses the formal legal method. The results of the study allowed the author to draw conclusions about sufficiency of existing legislative regulation for assessing the conclusion and validity of arbitration agreements included in draft contracts at the stage of competitive procurement procedure; about the lack of grounds for evaluating these agreements for their compliance with the principles of procurement; aboutthe legal force of dormant arbitration clauses necessary for business turnover in the short term. The author suggests directions for improving law enforcement practice aimed at curbing abuses in terms of challenging arbitration agreements on the grounds of their non-conclusion and (or) invalidity.

Egypt: Recent Developments in Arbitration Law

Abstract There are ongoing arbitration-related developments and updates that are worthy of mentioning in Egypt. In 2022, Egypt has adopted a recent model BIT, wherein it included provisions related to third-party funding and has significantly amended the dispute resolution mechanism of the preceding BIT models, and reintroduced the reference to ICSID arbitration under more stringent conditions. Also, by mid-2023, the CRCICA revealed its new draft arbitration rules which introduced new provisions that are not included in the 2011 arbitration rules such as consolidation, multiparty and multiple contracts arbitrations, third-party funding, emergency arbitrator and expedited procedures. On the judicial level, there are significant decisions rendered by the Cairo Court of Appeal and the Court of Cassation addressing various issues including the following: (i) the allocation of costs is based on a legal provision and does not amount to a compensation for special damages; (ii) supplementary compensation can be awarded in the form of an interest at a set rate provided that it fulfills the legally prescribed conditions; (iii) the nationality of the arbitrator is not a fundamental requirement to be included in the award, as long as it can be revealed from the case file and unless the parties excluded a specific nationality; (iv) a judge is disqualified to hear a petition filed to reverse his/her own order refusing enforcement of an arbitral award (v) a party who does not challenge an arbitrator, who failed to disclose that he was sentenced a one-year prison for a charge involving moral turpitude, within the timeframe for challenging him/her, is considered having waived its right to object and consequently such undisclosed circumstance will not affect the validity of the award; and (vi) the interest rate set by the Central Bank of Egypt is applied to commercial loans between non-banking commercial parties and does not violate the principles of Islamic Shari’a.

Virtual arbitration hearing: arbitrator's discretion or the right of the parties?

Today, international commercial arbitration remains one of the most effective ways to resolve disputes complicated by a foreign element. Parties to a dispute, preferring arbitration, wish to obtain the desired result in the shortest possible time. This is achieved because the parties to the arbitration proceedings themselves are endowed with an arsenal of rights that are not inherent in national courts: the right to choose a particular arbitration, the composition of the arbitral tribunal, and the law to be applied in the dispute. This is a manifestation of the "autonomy of will" of the parties to the dispute. However, despite such a broad scope of powers, some powers of the arbitral tribunal, which is chosen by the parties, cannot be limited. Although the discretionary powers of international commercial arbitration are regulated by national arbitration laws and rules, their exercise may sometimes contradict the fundamental principles and standards of effective arbitration. One of such powers is the right to determine the format of arbitration hearings, since it is by exercising this right that the arbitral tribunal may make its own decision without taking into account the views of the parties to the dispute. The article provides a comparative legal analysis of arbitration legislation, rules and law enforcement practice of national courts with regard to the possibility of determining a virtual hearing as the most efficient format for consideration of a case. Particular attention is paid to the imperfection of Ukrainian legislative regulation and the lack of a single, consistent court practice on these issues. Therefore, the conclusions propose to eliminate the shortcomings in the legal consolidation of such definitional constructs as "hearing" and "oral hearing".

Judicial Review of Arbitral Award

Arbitration is the process to settle dispute between the parties speedily and with confidentiality. The arbitration rules provide mechanism for judicial review of arbitral award as a supervision over arbitral process by the state at the seat of arbitration. An award reached by an arbitrator pursuant to a contractual agreement to arbitrate is not subject to judicial review except on the grounds set forth in law. According to article UNCITRAL Model Law recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paragraphs (2) and (3) of Article 34 (1). The object of research is to examine the ground of annulment of an arbitral award by the courts in the process of judicial review. If an award is set aside, it has no effects in the country where it was vacated. If setting aside occurs in a country in which, or under the law of which the award was made, such setting aside may become a reason under the New York Convention for other contracting states to refuse to recognize and enforce the set aside award. A brief review of legal provisions and judicial decisions demonstrate that courts in different jurisdictions interfered with arbitral awards only in limited circumstances. The study recommends that the judicial review of arbitral award should be done only on the grounds set forth in the law.

Article: Sustainable Arbitration Along the Belt and Road Initiative: The Green Model Clause

While there may be developments in the substantive obligations in green arbitration, it is difficult to say the same for the procedural aspects. Many have voiced concerns over the huge environmental impact in cross-border arbitration as a result of flights necessary for hearings and countless bundles of documents (just to name two examples). A select number of arbitral institutions have implemented climate-friendly practices in their rules and practice (whether pre- or during the COVID-19 pandemic), but such initiatives are far from sufficient. Although the new norm of virtual hearings has become common, some are concerned about their adoption, alleging a violation of the right to a physical hearing and consequently access to justice. Yet a relevant report released by the International Council for Commercial Arbitration (‘ICCA’) has definitively concluded otherwise. In this article, the Belt and Road Initiative (‘BRI’) provides the backdrop as one of the biggest infrastructure projects in the world that utilizes international arbitration. There are various initiatives within the BRI that gather major stakeholders, with the most relevant project here being the Beijing Joint Declaration by Arbitration Institutions for the BRI (the ‘Beijing Declaration’), which was issued by major arbitral institutions around the world and pushes for innovative changes in arbitration. Building on green practices in the arbitration community and the confirmation by ICCA that virtual hearings in and of themselves do not encroach on access to justice, the author suggests that arbitral institutions involved in the Beijing Declaration or along the BRI could pioneer changes in green arbitration by launching a Green Model Clause, which could operate as a clause for parties to adopt alongside carbon emissions scorecards, with the scorecards setting out a framework on the relevant factors for the tribunal to consider in the process of cost optimization. Belt and Road Initiative, model clause, arbitration, arbitration institutions, arbitral rules, Campaign for Greener Arbitrations, access to justice, virtual hearings, carbon emissions scorecards, climate change

중재판정의 기판력의 범위

Arbitral awards have preclusive effects, as well as national court judgments under res judicata principle, and this is stipulated in Arbitration Act of Korea. The extent of preclusive effect of court judgments, however, differs from country to country, especially between civil law jurisdictions and common law jurisdictions. The civil law jurisdictions usually preclude only the claims of the previous lawsuit to be relitigated, whereas the common law jurisdictions preclude both claims and issues of the previous lawsuit.
 Although preclusive effects of arbitral awards often have international character, there is no consensus in the extent of the effects. Each jurisdiction applies its own preclusive effect of court judgment to its arbitral awards.
 Recently KCAB in revision of its international arbitration rules is considering expansion of preclusive effect to the issues of the awards. However, in present situation where arbitral preclusive effect is determined according to the effect of court judgment in each country, this expansion could break the consistency between Arbitration Act and the Arbitration Rules.

JOINDER OF THIRD PARTIES IN INTERNATIONAL ARBITRATION

Multiparty arbitration has been recognized as an important feature in international arbitration and has consequently become an indispensable part of arbitration rules. With its inherent features and peculiarity, the provisions regulating multiparty proceedings are frequently ameliorated as they are constantly in the center of discussion among drafters and working groups, together with legal commentators. Arbitration rules were silent on the matter of a joinder for a long period. Gradually, joinder provisions have been introduced and are now being improved and enhanced with almost every revision of the arbitration rules. This paper discusses the joinder as one of the main mechanisms for transforming proceedings into multiparty proceedings. The author provides a comparative analysis of the joinder provisions under different sets of arbitration rules, focusing on key elements — the consent of the parties and the equal treatment of the parties.

Harmonizing Arbitration: Clarity, Consistency, and Consent in the Application of Ex Aequo Et Bono

This article delves into the intricate dynamics surrounding the application of the ex aequo et bono principle in arbitration, addressing concerns arising from potential procedural challenges and deviations from justice principles amid the escalating popularity of arbitration. The study intricately navigates the legal complexities of this principle, centering on the interpretation of Article 56 of Law 30/1999. Specifically, it scrutinizes whether the article mandates parties' consent for the arbitrator to decide based on ex aequo et bono. Employing a normative legal research approach and utilizing legal hermeneutics with a structuralist focus, the research analyzes the interplay of written agreements, tacit understandings, and standard practices in arbitration. The article underscores the critical role of precise protocols and unequivocal agreements in safeguarding the integrity and effectiveness of the arbitration process. It highlights the paramount need for clarity and consistency in legal provisions, advocating for collaborative efforts between legal authorities and arbitration institutions. This collaboration is essential for aligning statutory provisions and arbitration rules, ultimately fortifying a robust and dependable framework for the equitable resolution of conflicts. In conclusion, the article calls for a harmonized approach to address inconsistencies, enhance the legitimacy of arbitration decisions, and foster trust in the arbitration process. By exploring these challenges, the article contributes to the ongoing discourse of optimizing arbitration as a fair and efficient means of resolving international disputes.

Comparison of Selected Employment Arbitration Rules

Comparison of Selected Employment Arbitration Rules

Reform of the Arbitration Act 1996: a missed opportunity to entrench diversity?

Abstract This article discusses the recent consultation by the Law Commission of England and Wales (‘Law Commission’) on reform to the Arbitration Act 1996 (‘AA 1996’) which grappled with the issue of discrimination in agreements to appoint arbitrators. Recent efforts by the arbitration community to promote greater arbitrator diversity have started to result in the codification of equality and diversity considerations directly into some arbitral rules. However, guidelines developed to date by arbitral institutions have tended to focus on promoting greater diversity in institutional appointments rather than prohibiting discrimination in party appointments. In its September 2022 Consultation Paper, the Law Commission initially proposed new statutory provisions which would have made agreements relating to arbitrators’ ‘protected characteristics’ unenforceable, subject to certain exceptions. This article discusses some areas of uncertainty with these proposals which ultimately led to their abandonment, as well as the Law Commission’s conclusion against reforming the AA 1996 to prohibit discrimination in arbitration generally. The article examines some of the alternative ways in which discrimination could have been addressed through statutory reform and whether it is desirable for the onus to fall back to the arbitral institutions to adopt more robust guidance prohibiting discrimination in party appointments.