Arbitration Rules Research Articles

Article: Blanke on UAE Arbitration Legislation and Rules: A Multi-volume Article-by-Article Commentary, Volume 1 by Dr Gordon Blanke, Second Edition 2021, Sweet & Maxwell

Article: Blanke on UAE Arbitration Legislation and Rules: A Multi-volume Article-by-Article Commentary, Volume 1 by Dr Gordon Blanke, Second Edition 2021, Sweet & Maxwell

Article: A Wolf in Sheep’s Clothing: Overlooked Procedural Deficiencies in ICSID’s Annulment Structure

i style=""Over the past several decades, the International Centre for the Settlement of Investment Disputes’ annulment procedure has proved an object of consternation for states and investors alike. The substantive principles of Article 52 of the ICSID Convention are commonly criticized as either too expansive or too narrow. The author contends that this criticism is misplaced, however, and that it is procedural deficiencies which will plague ICSID’s annulment proceedings in this time of broad investor-state dispute reform. Overconcentration of annulment committee appointment and challenge power in the hands of the Chairman of the ICSID Committee and ICSID Secretariat, compounded by continued problems of ‘double-hatting’ at the annulment level, threaten the due process rights and autonomy of parties to ICSID annulments. The author proposes a feasible restructuring of annulment appointment and challenge procedure under the ICSID Arbitration Rules as a potential rectification of these procedural flaws, including a dispersal of appointment power, a new pool system for annulment panel members, and the creation of an independent review body to consider challenges to annulment panel members.

Shveytsariyadagi xalqaro arbitraj: so'nggi o'zgarishlar

Today, I am delighted to share my observations and insights on these changes with you. The 2021 has been a turning point for the Swiss arbitration community because of two major developments: the revised Swiss arbitration law entered into force in January 2021 and the revised Swiss Rules of arbitration entered into force in June 2021

Arbitration Laws and Judicial Response to Settling the Disputes Through Arbitration in Nepal

The article aims to analyze the arbitration-related laws in Nepal, the domestication of international arbitration treaties and conventions, settlement procedures of arbitration disputes and the role of the Nepalese judiciary to settle the disputes through arbitration. To settle disputes outside the court through a mutual agreement in a peaceful situation, ADR (Alternative Dispute Resolution) is the best method practiced worldwide since time immemorial; Nepal has also proclaimed various provisions in different statutes and rules. Arbitration Act, 2055 is the current statute that governs arbitration matters and Arbitration (Court procedures) Rule, 2059 governs the court proceedings. The various provisions of Arbitration Laws and Rules have been proclaimed to mitigate the international arbitration laws and rules. Nepalese judiciary especially the supreme court and high court has played a pivotal role to settle the dispute that arose during arbitration, arbitral award, its implementation, the appointment of arbitrator etc. The finding of the study is there have been significant changes in the decision-making process by the court and new trends mitigating the international proceedings have been followed. The analysis is significant as it helps to understand the arbitration laws and procedures and new trends adopted by the courts to settle disputes.

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.

Transparency in ISDS: A Study Based on Multi-party Agreements

The virtues of transparency and confidentiality in international judicial processes are often debated, including in relation to investor-State dispute settlement (ISDS). The extent of transparency in an ISDS proceeding may vary based on the applicable arbitration rules and the text of the international investment treaties under which the dispute arises. In this context, this article studies the practice of States reflected in select multiparty agreements. The sample of agreements considered, by virtue of the large number of participating countries, significance of trade and investment flows between participants, or both, may be considered representative of global trends or the lack thereof. The article also discusses how the transparency and confidentiality provisions in such agreements interact with the applicable arbitration rules and the net effect on transparency in ISDS. ISDS, transparency, UNCITRAL Arbitration Rules, public access to documents, open hearings, third parties, publication of orders, confidentiality.

LONDRA’DA DENİZ TİCARETİ TAHKİMİNE İLİŞKİN GENEL BİR DEĞERLENDİRME

Due to some reasons such as the need for secrecy, the protection of reputation, the fact that the disputes are resolved quickly and by experts in the field, arbitration has become the most popular method to be used in maritime disputes across the world. In practice, it seems that in many international commercial agreements, the arbitration venue is provided as London, and the law to be applied to the arbitration is English law. Within this scope, around the world, rather than arbitration institutions like ICC, especially LMAA with its ad hoc arbitration process is considered to be the most applied association. Consisting of many expert arbitrators in maritime disputes, LMAA has updated its arbitration rules of three sets along with its independent rules-FALCA Rules. Moreover, before the arbitration process begins, it is possible for parties to a dispute to sign an agreement voluntarily with an evaluator in order to obtain an early neutral evaluation. As being a form of an alternative dispute resolution method, in this process, parties apply to the evaluator for his objective and realistic opinion. However, in case that the dispute cannot be solved at any stage until arbitration, in this study, the LMAA Terms to be applied and the procedure regulated in these Terms should be examined and some matters regarding arbitral tribunals and legal remedies against tribunal awards should be discussed.

A Pathology (Yet) to Be Cured?

Fifty years ago, Frédéric Eisemann coined the expression ‘pathological clause’ to refer to arbitration clauses that substantially deviate from the essential requirements of a model clause. However, arbitration practitioners have not yet learned their lesson; the matter of pathology is far from being outdated. Arbitration clauses may be pathological if they do not provide for mandatory referrals to arbitration proceedings, or do not meet certain other requirements to provide for a workable arbitration procedure, or contain a reference to non-existing arbitral institutions and/or arbitral rules, or provide for a proceeding administered by an arbitral institution pursuant to different institutional rules. In most instances, the competent supervisory court (or the arbitral tribunal or institution dealing with a defective clause) seeks to cure these pathologies. Arbitral tribunals and national courts generally try to ascertain whether the parties’ real intention is to arbitrate, and, if that to arbitrate is apparent, to give effect to and enforce an otherwise invalid arbitration clause. In any case, parties should not blindly rely on tribunals’ and courts’ tendency to uphold such clauses; the only safe approach is to avoid pathology. pathological/pathology, arbitration clause, hybrid (arbitration clause), asymmetric (arbitration clause) effectiveness principle, validity, enforcement, vacatur contractual autonomy

There Must Be Another Way

Justice or dispute resolution by way of commercial and investment arbitration is still too frequently delayed and justice thus effectively denied. The procedural calendar is often too protracted. The parties’ submissions are often too numerous and insufficiently focused. The extent of documentary and testimonial evidence is often too cumbersome, thus favoring quantity over quality. And awards are often issued too long after the hearing or the parties’ last submissions.This article examines practice under the CAS rules for sports arbitration and posits that, whilst not flawless, commercial and investment arbitration practices could greatly benefit by drawing inspiration from CAS when it comes to effectiveness, proving that there is another way of doing things more efficiently while preserving due process and quality safeguards. But this requires that arbitration users, including arbitrators, counsel, parties, institutions and administrative secretaries, be willing to unlearn, to accept that there is and should be another way to conduct arbitrations from start to end in order to save time and costs, to commit to change and to implement these.

Regulating Sports Disputes at the National Level: Requirements and Recommendations for Proceedings before National Sports Tribunals

Sports disputes are routinely subject to private resolution procedures, whether before internal bodies within the sports organisation itself, or before external fora such as, for example, the Court of Arbitration for Sport (CAS), Sport Resolutions, or the Bahrain Chamber for Dispute Resolution, under their sports arbitration rules. This article presents some key requirements and recommendations for proceedings before national sports tribunals. Given the breadth of the concept of “sports disputes,” however, it is difficult to distil requirements and recommendations that (should) apply across the board in proceedings before national sports tribunals. The article is, therefore, focused on some of the more interesting or challenging elements specific to sports-related proceedings.

The Arbitration Rules of the Nordic Offshore and Maritime Arbitration Association – A Swiss Perspective

The Arbitration Rules of the Nordic Offshore and Maritime Arbitration Association – A Swiss Perspective

The Potential of Arbitration as Effective Remedy in Business and Human Rights: Will the Hague Rules be Enough?

AbstractThe area of business and human rights (BHR) has a gap in its means to effectively remedy human rights violations. In pursuit of implementing the third pillar of the UN Guiding Principles on Business and Human Rights, which focuses on providing an effective remedy to rightsholders affected by corporate human rights violations, it has been proposed to utilize arbitration as a new platform to deal with such violations. The Drafting Team that instigated this initiative has prepared a set of procedural rules for BHR arbitration, called the Hague Rules. The Rules were officially launched on 12 December 2019. These arbitral rules are tailored to the specific needs of settling human rights disputes. In this article, the general idea of BHR arbitration will be analysed and assessed in light of the normative concept of ‘effective’ remedy, using the Hague Rules as a focus point. This article will discuss not only what the Hague Rules would introduce to the general concept of BHR arbitration, but also what limitations might still remain in securing an effective remedy.

Sports Arbitration Procedures and Rules in Jordanian Legislation Compared to the Court of Arbitration for Sports (CAS)

The research dealt with the procedures and rules of sports arbitration in both Jordanian legislation and the Court of Sports Arbitration CAS, by presenting the legal texts related to arbitration in both Jordanian legislation and the Court of Sports Arbitration CAS, to benefit from them in the development of sports legal rules within the national level. The research reached a number of results, including: Settlement of sports disputes in Jordanian legislation through the Sports Federation for Sports Activity. The jurisdiction of the Court of Arbitration for Sport (CAS) in accordance with the 2021 Jordan Sports Federations Regulations can also be terminated, after all internal methods or means have been exhausted.
 
 Received: 29 March 2022 / Accepted: 30 April 2022 / Published: 5 May 2022

Effectiveness of the Recognition and Enforcement of the OHADA`S Arbitral Award

OHADA is amongst an international organization consists of arbitral tribunal within regions in Africa to deal with international disputes on investment and commercial related. Henceforth, the purpose of the study examines the effectivity of arbitral awards enforcement under the perspectives of OHADA arbitration rules. The study axed through qualitative approach by interpreting legal rules, analyzing cases and commenting the weakness of the charter in terms of enforcement and recognition of arbitral awards. The decision of OHADA arbitral tribunal shall contain intrinsically legal effect to country members, however it leads problematics as the enforcement and recognition rules may be different in every country involved. Hence, the study interpreted the legal rules concerning enforcement and recognition of arbitral awards, effectiveness of the rules. In addition it exerted also the challenges and significant recommendation for improving the arbitration rules on enforcement of arbitral awards. It is found the weakness of the arbitral awards locates on refusal of concerned State to enforce the awards under the domestic law for undefinable conflict of interest.

W(h)ither Institutional Terms of Reference?

Although Terms of Reference (‘ToR’) have been a longstanding and distinctive feature of the International Chamber of Commerce (ICC) Rules of Arbitration for almost a century, their continuing relevance and necessity warrant scrutiny, considering the radical evolution of international arbitration in recent years. The introduction of sophisticated procedural tools and frameworks, together with most states and courts exhibiting ‘pro-arbitration’ attitudes, lead one to question whether ToR remain a necessary procedural tool. In answering this question, the article first assesses the historical context in which the ToR were introduced to serve as a submission agreement and questions whether ToR continue to serve their historical role. The article thereafter closely scrutinizes the ToR’s current features and functions and considers whether the ToR have outlived their usefulness by analysing whether they are needed to fulfil those functions. The fact that ToR are no longer required as necessary evidence of consent and/ or to assist in the enforceability of an award, together with the advent of new procedural tools and practices, have rendered the ToR all but superfluous in today’s context. The article proposes that the ToR’s mandatory nature be dispensed with in the interest of efficiency, making way for dynamic procedural alternatives. International Arbitration, Terms of Reference, ICC, Arbitration Procedure

ON THE CONSTRUCTION OF EMERGENCY ARBITRATOR SYSTEM IN MAINLAND CHINA

Based on the judicial policy supporting the development of international commercial arbitration and following the international development trend, China has not only introduced the emergency arbitrator system into the arbitration rules of arbitration institutions, but also intends to make breakthroughs in legislation - the Arbitration Law (revised draft), issued by the Ministry of Justice on July 30, 2021, adopted interim measures as a new special section and introduced the emergency arbitrator system. Although some arbitration institutions in China have made breakthrough attempts for the emergency arbitrator system, it is still new in China so that its provisions and application remains in the superficial stage. Therefore, this article will take China’s Arbitration Law (revised draft) as the background and combine with the provisions of arbitration institutions headquartered in mainland China on the emergency arbitrator system to discuss the construction and rule design of the emergency arbitrator system in China.

Arbitration in Derivatives Contracts

In recent years, the International Swaps and Derivatives Association (ISDA) has increasingly facilitated the use of arbitration as a means of resolving disputes arising out of derivatives transactions. Although the financial services industry is said to have traditionally preferred court-based dispute resolution, a number of factors suggest that market participants ought to consider the particular advantages of arbitration for such disputes. In particular, factors such as the ability of arbitration to mitigate enforcement risks in the absence of the mutual recognition of judgments and to deal with competing regulatory standards both in European and international derivatives suggest that arbitration should play an important role in the resolution of such disputes. This article reviews the history of arbitration in derivatives disputes and considers the recent moves by ISDA to facilitate the use of arbitration as a means of dispute resolution. It also considers the various options now available in this regard to market participants who seek to use ISDA standard form documentation, and the factors affecting the use of arbitration as a dispute resolution mechanism. It concludes that more research and data is required to monitor the use of arbitration in this area. Arbitration – arbitral rules and institutions – ISDA – Derivatives – financial services – arbitral award, recognition and enforcement – enforcement – choice of law

Istorijska pobeda ili kula u vazduhu? - značaj arbitražne odluke u predmetu Green Power v. Spain u sukobu Evropske unije i međunarodnog sistema rešavanja investicionih sporova

The EU and ISDS have been embroiled in an exhausting feud over intra-EU investment disputes which may still not reach its climax despite several dramatic and radical moves by the European Union and its Member States against the nearly unfettered resistance of the ISDS. Green Power v. Spain is the first international investment case in which the tribunal denied jurisdiction due to an incompatibility of the arbitration clause in the Energy Charter Treaty with EU law in light of the Achmea case, but also the first case where the rule of lex superior was employed to tip the scale in favour of EU law. The overview of the award will be presented against different backgrounds: massive investment case law uniformly denying intra-EU preliminary objections on one hand, and concerted actions of the EU and its Member States to construct a dam against intra-EU investment cases, on the other. The aim of this case note is to review the possible relevance of the Green Power v. Spain arbitral award and the argument that EU law is lex superior as a matter of international law, in pending and future intra-EU investment disputes, and to assess to what extent different factors, such as the seat and rules of arbitration and general rules of international law, molded the reasoning of the tribunal. The arbitral award is a meticulous decision with instructive arguments on how to situate supremacy of EU law within the law of treaties while navigating the rough waters of enduring conflicts amid different international agreements and between various levels of governance. Given that the tribunal offered a variety of reasons to uphold the applicability of EU law to determine jurisdiction, there is the distinct possibility that the award might have an impact on other investment tribunals.

Fazilatfar, Hossein: Overriding Mandatory Rules in International Commercial Arbitration. Cheltenham, UK, 2019

Fazilatfar, Hossein: Overriding Mandatory Rules in International Commercial Arbitration. Cheltenham, UK, 2019, 10.1628/rabelsz-2022-0017, Jahrgang 86 (2022) / Heft 1, 0033-7250 (1868-7059), The Rabel Journal of Comparative and International Private Law

Evidentiary Rules for Arbitration

Evidentiary Rules for Arbitration