Scope Of Arbitration Research Articles

Proper Legal Drafting of Arbitration Clauses

Objective: This article analyses the main and necessary features on drafting an arbitration clause properly. Thus, the article identifies and debates the major points that shall be considered in drafting arbitration clauses, namely, ambiguity of drafting, scope of arbitration, institutional or ad hoc arbitration, international or domestic arbitration, choosing the place and seat of arbitration, choosing arbitrators, language of arbitration, and reconciliation before entering into arbitration. This article does not contest that we shall have a uniform or standard template for arbitration clauses. Rather, it only provides guidance for drafting a proper and legal arbitration clause. Theoretical framework: Arbitral disputes arise when there is a written arbitration clause that leads to arbitration instead of litigation. Such clauses shall be drafted properly and legally, where if such drafting is not proper and legal, the arbitration clause will not be applicable, and in consequence, it shall be considered null and void. Method: The method used in this research is practical legal research including statutory and comparative approaches. Results: The results of this study explain that the drafters of arbitration clauses shall be cautious and knowledgeable in their writing given the significance of the arbitration clause's terms. Conclusions: The conclusion of this study is that there is no universal arbitration clause that can be followed, but there are several critical provisions in an arbitration clause that can help parties to avoid spending time and money on the arbitration proceeding. Thus, arbitration clauses shall be drafted properly and carefully.

Arbitration: A Creature of Contract?

The Supreme Court has repeatedly characterized arbitration as a “creature of contract,” and as the upshot of parties’ voluntary choices that the Court must honor. Based on this metaphor, the Court has expanded the scope of arbitration even in employment and consumer contracts, giving broad authority to arbitrators and limiting parties’ access to procedural mechanisms like class actions and judicial review. The metaphor does not fit the Court’s jurisprudence and its aggressive pro-arbitration policy, and rests on a mistaken view about the structure of contract law, ignoring that contract—and, therefore, arbitration—is a creature of law. The contractual view of arbitration also generates normative problems. It leads to a form of “everyday libertarianism,” which shields arbitration law from critical scrutiny, generates significant problems in mandatory arbitration in employment and consumer transactions, and even leads the Court’s critics to mistakenly assume that lack of consent is the cause of the problems in these contexts. As the Article argues, the mistaken notion of arbitration as a creature of contract is not limited to the domestic level—it also extends to international arbitration. We thus need to replace the contractual metaphor. The Article offers a better account of the structure of arbitration, based on the notion that arbitration law, like contract law, is a compound rule generating both powers and duties. Based on this more accurate picture of arbitration law, the Article offers two criteria for the evaluating arbitration as a legal enforcement institution: its effectiveness as a device for producing law and its aptness as a rights enforcement mechanism. Ultimately, because arbitration requires the law’s assistance, law has the authority and the responsibility to ensure that arbitration works adequately. As every exercise of legal authority, arbitration stands in need of justification and should be subject to normative evaluation.

The Potential of Arbitrating Healthcare Disputes

The speedy progress of trade in Global Health Services is limited by legal barrier. Advances in technology andcross-border movement of people and health services form legal ambiguities and uncertainties for businessesand consumers involved in transnational medical malpractice disputes. This requires for a uniform meansof redress which is more flexible and predictable as compared to litigation in a court room. Therefore, thevoluntary, flexible and legally binding nature of arbitration agreements across jurisdictions make this formof dispute resolution efficient and adaptive to changes in the health services industry. With careful making ofan approach that accounts for arbitration cost, reasonable recovery amount and complementary mechanismssuch as no-fault compensation, international arbitration of medical malpractice disputes will change thelegal risks borne by businesses and consumers more fairly and efficiently.This paper argue that most medical disputes are better resolved by alternative dispute resolution mechanismswhich will contribute in improving patient safety by encouraging candid and comprehensive reporting ofrisks. It also argues that medical disputes and patient safety needs to be viewed through a new lens, namelypatient autonomy. It discusses the scope of India flourishing in the field of Medical Tourism and also thechallenges faced by the foreign patients and the scope of Arbitration in amicably resolving the medicaldisputes in a cost effective and in a swift manner.

Arbitration in SEP/FRAND Disputes: Overview and Core Issues

This article takes a look at arbitration in intellectual property matters with regards to the licensing of standard-essential patents (SEPs) on fair, reasonable, and non-discriminatory (FRAND) terms. Due to the digital transformation, the importance of FRAND licensing of SEPs is likely to increase and with it the need for appropriate conflict resolution. This is where arbitration can come into play due to its flexibility and efficiency. The resolution of SEP/FRAND disputes through Alternative dispute resolution (ADR) is also supported by administrative and judicial bodies and institutions such as the International Court of Arbitration of the International Chamber of Commerce (ICC) or the World Intellectual Property Organization (WIPO) have already gained experience in this field. The article lays down particularities regarding the scope of arbitration in such disputes before briefly touching upon the question of arbitrability. Due to the lack of a law applicable to a pre-existing contract in prototypical SEP/FRAND constellations, the choice of law is also of importance. A special emphasis is put on the issue of confidentiality in view of a public interest in having access to key results of SEP/FRAND arbitration proceedings. As set forth in the article, the FRAND ADR Guidelines authored by the Munich IPDR Forum propose a solution in the form of disclosure of the FRAND determination methodology to a neutral instance, subject to party approval. Lastly, the article looks at how state courts might assess licenses reached in alternative dispute resolution and examines whether EU competition law is a public policy hurdle in subsequent enforcement proceedings.

Arbitration in SEP/FRAND Disputes: Overview and Core Issues

This article takes a look at arbitration in intellectual property matters with regards to the licensing of standard-essential patents (SEPs) on fair, reasonable, and non-discriminatory (FRAND) terms. Due to the digital transformation, the importance of FRAND licensing of SEPs is likely to increase and with it the need for appropriate conflict resolution. This is where arbitration can come into play due to its flexibility and efficiency. The resolution of SEP/FRAND disputes through Alternative dispute resolution (ADR) is also supported by administrative and judicial bodies and institutions such as the International Court of Arbitration of the International Chamber of Commerce (ICC) or the World Intellectual Property Organization (WIPO) have already gained experience in this field. The article lays down particularities regarding the scope of arbitration in such disputes before briefly touching upon the question of arbitrability. Due to the lack of a law applicable to a pre-existing contract in prototypical SEP/FRAND constellations, the choice of law is also of importance. A special emphasis is put on the issue of confidentiality in view of a public interest in having access to key results of SEP/FRAND arbitration proceedings. As set forth in the article, the FRAND ADR Guidelines authored by the Munich IPDR Forum propose a solution in the form of disclosure of the FRAND determination methodology to a neutral instance, subject to party approval. Lastly, the article looks at how state courts might assess licenses reached in alternative dispute resolution and examines whether EU competition law is a public policy hurdle in subsequent enforcement proceedings.

Arbitration Agreement: The Issue of Arbitrability in Nigeria Arbitration Practice

Arbitration agreement is the bedrock of every arbitral proceedings and it is the corner stone of the jurisdiction vested on the arbitrators to arbitrate on any matter referred to them. The agreement could take various forms and character (oral or written) depending on the governing law. It is not all issues and subject matters that are arbitrable. Different national legislation and public policy have limited the scope of arbitration with respect to the issue of arbitrability. Not all matters are capable of being referred to arbitration. Certain matters are reserved for the court alone and if an arbitral tribunal purports to deal with them the resulting award will be unenforceable. We have arbitrability based on agreement and arbitrability based on law and public policy. In this work, efforts shall be made to address all issues with respect to arbitration agreement under the Act and the concept of arbitrability.

Arbitrability of Competition Claims in Tort and the Principle of Effectiveness of EU Law

This article discusses whether cartel damages claims are arbitrable under EU law. Although it is settled that most types of competition disputes are arbitrable in principle, the Opinion of the Advocate General and the ruling of the Court of Justice in Cartel Damage Claims (CDC) Hydrogen Peroxide SA v. Akzo Nobel NV (CDC) raise the question as to whether cartel damages claims fall within arbitration clauses entered into at a time when the claimant did not have knowledge of the cartel. This article argues that the CDC case does not compel national courts to interpret the scope of arbitration clauses as excluding cartel damages claims. The outcome of each case will depend on the law applicable to the arbitration agreement and the precise words in the agreement itself and it is not a matter governed by EU law. It cannot be excluded that the principle of effectiveness of EU law may require national courts to disapply arbitration agreements on the facts of a particular case but the threshold is a high one. It would not be sufficient for the claimant to persuade the court that it would have been more advantageous for him to make its claim in court or that the claimant was not aware of the cartel at the time of entering into the arbitration agreement. The claimant must prove that to arbitrate the claim would make the exercise of rights conferred by EU law impossible or excessively difficult. Given that arbitral tribunals are well equipped to deal with a wide range of disputes, including tortious claims and claims involving issues of a technical or economic nature, it is difficult to conceive of circumstances in which this threshold may be met.

STUDI KOMPARATIF PENYELESAIAN SENGKETA EKONOMI MELALUI PENGADILAN NIAGA DAN ARBITRASE

Formally, the economics of alternative dispute resolution can be done through the Commercial Court and Arbitration. Both are different in terms of the object of dispute, the procedures for dispute resolution and legal consequences. In terms of the object of dispute the equation is the Commercial Court and Arbitration courts can be resolving disputes in the field of property rights along a predetermined interlektual in UUHKI. While the difference is the scope of Arbitration has a broad field that encompasses all economic fields of trade, finance, industry, banking, and everything related to the rights of the parties. Commercial Court only has the authority in the field of IPR and bankruptcy as well as the postponement of debt payment obligations. Keywords: Economic Dispute Resolution, Commercial Court of Arbitration

Constitutional foundations of commercial and investment arbitration in Nigerian law and practice

Generally, constitutions do not expressly provide for commercial or investment arbitration. However, being vital to the validation, interpretation, and application of statutes, constitutions impact on national arbitration statutes. This article examines the role of the constitutional framework and provisions in Nigerian arbitration law and practice. The examination deals with the history and legitimacy of principal statutes, the rights and scope of arbitration, and the judicial power and jurisdiction of courts. Contrary to opinions in judgments and scholarly writings, provisions on legislative and judicial powers and on fundamental policy objectives and human rights positively reinforce the UNCITRAL Model Law 1985 inspired Arbitration and Conciliation Act 1988, Nigerian Investment Promotion Commission Act 1995, and other related statutes.

The Shari'a Law Factor in International Commercial Arbitration

The world has witnessed a phenomenal growth in commercial disputes transcending national borders due to our increasingly interrelated and globalized world economy. In addition to issues in interpretation of commercial agreements and practices, differences in custom, language, culture and religion continue to fuel conflicts and disagreements between commercial players. Over the last few decades there have been growing commercial interaction between Western companies and their Middle Eastern counterparts. Given this interaction and the great geo-political and economic importance of this region, it is imperative that Western lawyers and dispute resolution professionals have a reasonable grasp of the general principles of Shari'a or Islamic law, a source (to varying degrees) of law in most nations in the Middle East. It is clear that the increase in international commercial transactions has contributed to the globalization of the legal community, but it is disturbing that there has been very little examination of the influence and impact on the Middle East's legal system's religious underpinnings upon the continued acceptance of international commercial arbitration. Given the growing calls for a return to the Shari'a and increasing global interdependence, the western legal community can no longer be satisfied to leave the Shari'a as a preserve of Middle East specialists, Arabists and comparative law experts. It is a trite observation that cultural or more aptly in the Middle East, religious considerations, can play a vital role in the acceptance and successful functioning of international commercial arbitration. The religious variable may impact on the following: the scope of arbitration; the nature of arbitration; the choice of law; the appointment of arbitrators; liability of arbitrators; limitations periods; interest awards; public policy considerations; evidentiary considerations; enforceability of decisions, etc. This paper will explore the development and acceptance of international commercial arbitration in the Middle East and analyze the issues and areas which create tension between international commercial arbitration and the Shari'a. There is certainly a need to reform Islamic law from within to deal with contemporary norms, transactions and institutions, but there is an equal need to better accommodate and address the issues of concern from an Islamic perspective. The assumption and belief that the Shari'a is being sidelined, and that the current international commercial arbitration framework is exclusively derived from the Western legal heritage may create obstacles in the acceptance and continued legitimacy of international commercial arbitration in the Middle East, and even in the other Islamic nations. This is clearly unacceptable if we recall that the twin objectives of the legal framework underpinning international commercial arbitration are to ensure enforceability of arbitration agreements/clauses and arbitral awards and to insulate the arbitration process as much as possible from interference by domestic courts and other national or international institutions. This can only be achieved when there is mutual respect and understanding of the various laws, practices, cultures and religious worldviews prevalent in the world today. There is a clear need for dialogue. The aim of such a dialogue will be to help develop an international commercial arbitration regime in which the business community can have confidence, while staying true to the core principles of tahkim (arbitration) under the Shari'a. This will help remove a potential crutch that may be used by those who oppose the international commercial arbitration movement as being one of purely Western import.

A Profile of Labor Arbitration

Focuses on the arbitration of labor-management disputes in the United States. Purpose of arbitration; Selection of labor arbitrators; Scope of arbitration; Procedures in arbitration hearing; Cost of arbitration. (Abstract copyright EBSCO.)