Seat Of Arbitration Research Articles

Which law should govern the ‘arbitrability’ of a dispute in England?

Abstract This article considers, from an English law perspective, the question of which law should govern the arbitrability of a dispute. The focus of the article is on the position preaward as opposed to postaward, which is expressly addressed by the New York Convention. The article analyses this question in light of the decision of the Singapore Court of Appeal in Anupam Mittal v Westbridge Ventures II Investment Holdings, the only authoritative treatment of the relevant issues by a common law jurisdiction. In Anupam, the court concluded that a composite approach to the law applicable to the arbitrability of a dispute should apply, requiring a dispute to be arbitrable under both the law of the seat of arbitration and the law applicable to the arbitration agreement. The authors suggest that a composite approach to the issue of arbitrability should not be followed in England. Instead, English law should apply the more orthodox approach of looking to the law of the seat. An approach that looks to the law of the arbitration agreement would be particularly detrimental to English arbitration law given the decision of the UK Supreme Court in Enka v Chubb. It underlines the need for reform of the Arbitration Act 1996 to address some of the well-known problems caused by Enka and which could be expanded by the additional focus on the law applicable to the arbitration agreement provided by Anupam.

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.

Arbitration and Corruption: The Importance of the Seat of Arbitration

Arbitration and Corruption: The Importance of the Seat of Arbitration

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: Codification, Convenience, and the Common Law: The Rationales Underpinning the Law Commission’s Proposed Reforms to the English Arbitration Act 1996

The Arbitration Act 1996 has regulated arbitrations in England and Wales for almost thirty years. Given the evolution of arbitral practice during this time, the UK Government in 2021 asked the Law Commission to consider potential amendments to the Act to ensure that it continues to be ‘state of the art’. The Law Commission concluded that wholesale reform of the Arbitration Act was not necessary or desirable in order to achieve that aim. The Law Commission instead proposed a series of targeted amendments, which are due to be implemented in legislation during the course of 2024. This article provides an overview of the Law Commission’s review process before discussing its key recommendations and their potential impact on London’s position as a preeminent seat for international arbitration. The article also discusses the rationales underpinning the Law Commission’s recommendations. In summary, some proposals merely modify the wording of the Arbitration Act without changing the substance of English law. A second category represents a conscious effort towards progressive development of the arbitration framework in England and Wales, to ensure in particular that London remains competitive internationally. A third category of changes seeks to build on the strengths of the English courts to ensure that the Arbitration Act continues to reflect the evolving world of arbitration. Taken together, the authors consider that the Law Commission’s targeted recommendations should go some way to ensuring that England – and London – continue to have a prominent place in that world. Arbitration, Arbitration Act 1996, Dispute Resolution, Reform, Law Commission, Consultation, England, London, Model Law, New York Convention

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.

Confidentiality in Arbitration: A Principled Response to the Opportunity for Codification in England and Wales

Confidentiality is often perceived as a pivotal aspect of arbitration, shielding sensitive information from unauthorized disclosure and preventing potential harm. This article examines the opportunity for codification of the confidentiality obligations in arbitration in England and Wales in light of the Law Commission’s recent review of the Arbitration Act 1996, emphasizing the importance of clear and predictable rules to enhance England and Wales’ status as a favoured arbitral seat. Codification will offer legal certainty and the concern that users from around the world must navigate a complex web of case law to determine the existence and scope of confidentiality duties, making it less accessible. By enshrining confidentiality in the Act, informed decisions can be made without ambiguity. This article is split into four sections, examining the concept and significance of confidentiality, the global development of confidentiality rules, the opportunity for codification, and the potential benefits of harmonizing international arbitration law. For codification to be effective, the drafters must define robust exceptions, such as consent, court orders, protection of legitimate interests, and public interest. Drawing inspiration from other jurisdictions, the Act should allow flexibility for courts to address unforeseen scenarios. By embracing confidentiality and providing clarity, England and Wales can strengthen its position as a leading jurisdiction for international commercial arbitration. Confidentiality, Arbitration, Procedure, Codification, Uniformity, Harmonization, UNCITRAL Model Law, Institutional Rules

The Validity of Arbitration Agreements Providing for Arbitration in Mainland China Administered by Overseas Arbitration Institutions

With China increasingly opening up in relation to trade, the number of overseas arbitration institutions practicing in China’s free trade zones is expected to rise. At the same time, however, the validity of arbitration agreements remains uncertain under Chinese arbitration law, with arbitration clauses which tend to permit administration only by domestic arbitration commissions. Chinese arbitration legislation and recent cases demonstrate that this issue can be attributed to difficulties identifying a designated arbitration commission or tribunal, as well as unclear standards to determine the nationality of the arbitration award. Considering relevant decisions of Chinese courts over the past twenty years, this article concludes that the attitude of the Chinese judiciary towards arbitration by overseas arbitration institutions in China has shifted from conservative to more open. However, a number of issues, including confusion around the arbitration jurisdiction (caused by absence of a requirement to specify the arbitration institution) make this area a difficult one for practitioners. overseas arbitration institutions, the validity of arbitration agreement, free trade zone, the seat of arbitration, the New York Convention

Thou Shalt Have the Power to Grant Interim Relief: The Reform of the Italian Regime on Arbitral Interim Relief

By Legislative Decree no. 149/2022, Italy made several amendments to its arbitration law, which will apply to proceedings starting after 28 February 2023. The most significant innovation is the eradication of the infamous prohibition of arbitral interim measures. Indeed, the reform introduces a radically new regime on arbitral interim relief that expressly recognizes the arbitrators’ power to grant such relief and that contemplates mechanisms for challenging and enforcing arbitral interim measures (including interim measures issued abroad). This article aims to provide an in-depth analysis of the new provisions on arbitral interim relief, highlighting potential issues and solutions. In the authors’ view, despite some minor quirks, those provisions set up a very effective regime for arbitral interim relief, and are expected to contribute to making Italy a much more appealing arbitration seat internationally. Interim relief, Interim measures, Provisional measures, Italian arbitration law, Arbitration, Article 818, Emergency arbitration, Italy

Recognition and Enforcement of Annulled Arbitral Awards Under the New York Convention 1958

Purpose: The arbitral awards are enforceable internationally under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958. The Convention provides the discretion to the courts in enforcing State either to enforce or reject the international arbitral awards. The award set aside at the seat of arbitration is not enforceable, however the courts in some jurisdictions enforced such awards. In this context the paper examines how the courts in different jurisdictions justified while enforcing the annulled awards. Theoretical framework: Arbitration mechanism is frequently used for settlement of international commercial disputes. It enables party autonomy in drafting arbitration agreements, choosing the applicable law and determining the arbitration seat. According to Article V (1)(e) of the New York Convention the national courts may refuse to recognize or enforce the foreign award if it was set aside or annulled at the seat of arbitration or under law of which such award was given. In some jurisdictions the enforcing courts considered the annulment procedure followed by the courts and if such procedure was unfair, the courts in enforcing country have agreed to enforce the set aside awards. Design/methodology/approach: The author followed the legal analysis method to examine the approach of the courts from different jurisdictions that have enforced the annulled foreign arbitral awards and the legal comparative method observed to study the judicial decisions from various jurisdictions. Findings: The study concludes that Article V (1) of the New York Convention gives discretionary power to the enforcing courts regarding enforcement of foreign arbitral award. Hence, the courts in some jurisdictions enforced the annulled award if the set aside procedure was unfair, based on local grounds, biased, violated basic norms of justice, against the parties’ agreement or applied domestic law instead of the New York Convention. To secure the enforcement of award, the parties to the arbitration may agree that the arbitral award is not subject to challenge in any court at the arbitration seat or in the state in which the award is enforced and prefer a pro-arbitration State as a seat of arbitration. Research, Practical & Social implications: The study provides practical guidance to the arbitrating parties in drafting arbitration agreements to ensure the enforcement of an arbitration award internationally. Originality/value: The research on enforcement of annulled award under the New York Convention immensely helpful in guiding the arbitration parties in drafting the arbitration agreement, choosing arbitration procedure and seat of arbitration.

Challenges towards selecting Saudi Arabia as an arbitral seat for foreign investors

Abstract Identifying the seat of arbitration jurisdiction is of great significance to the arbitral procedure. Countries seek to develop their arbitration laws and harmonize the cross-border arbitral regimes in order to modernize the practices and increase foreign direct investments nationally. Foreign parties aim to select an arbitral seat that is efficient and conforms to international arbitration practices. The parties’ choice of seat dictates the arbitral procedure adopted on the dispute and influences the boundaries of the arbitral awards. This paper evaluates Saudi Arabia as an arbitral seat for foreign investors and considers the key factors affecting the parties’ selection. Further, the paper analyses the legal barriers faced by the parties in association with selecting the Kingdom as a seat for arbitration. The purpose of the paper is to outline the challenges and present recommendations to develop the practices of arbitration in Saudi Arabia to increase its level of conformity to international arbitration standards.

Alternate Dispute Resolution and Copyright Litigation

With the internet’s growing influence, numerous pirated copies of copyrighted works exist on different platforms. It is not possible to always approach the Courts because the person infringing the copyright might be a citizen in a country other than where the copyright owner resides. As a result, the person who infringed the copyright is out of the court’s reach. Here comes in handy the ADR mechanism established in almost every nation. This paper primarily deals with the suitability of the ADR mechanism being more than usual litigation for violation of copyright and licensing agreements.The article first deals with the potential copyright disputes that might arise due to the overarching boundaries of the internet. Thereafter, the paper centers its focus on the problems that the parties to an infringement suit might face if courts are approached for copyright infringement such as lack of jurisdiction, expensive, time-consuming, and so on. As the article proceeds further, it delves into how the ADR mechanism has improved the resolution of copyright disputes. The ADR mechanism does not need to abide by all the domestic laws of one country. In cases where parties belong to different jurisdictions, the parties are free to choose any seat of arbitration and the applicable arbitration rules. It is ultimately the law of the seat of arbitration that governs the arbitration process. Moreover, the approach of the ADR mechanism is always to arrive at a win-win solution i.e., a solution where neither of the parties is at disadvantage. The ADR mechanism works solely with the intention to resolve disputes by arriving at a settlement where both parties are satisfied and neither of them becomes the loser. The article also deals with the difference in approach of arbitration, mediation, conciliation, and other ADR methods while resolving a dispute.

Seat of arbitration: problematic issues of theory and practice

The effectiveness of arbitration, as well as its attractiveness for disputing parties, depends more on the existing and developed legislative framework of the convention (ratification of numerous multilateral international legal instruments) and national arbitration legislation. It is the combination of these sources that guarantees the procedural autonomy of the arbitration, while significantly reducing the interference of national courts, In addition to the existence of mandatory and optional rules for the provision of such assistance in arbitration.
 Unfortunately, such a legal framework for the consideration of foreign economic disputes by international commercial arbitration may be too complex and even sometimes unclear and problematic. However, this ambiguity in the interpretation and understanding of the law of international commercial arbitration can be addressed by paying sufficient attention to the definitional apparatus, the assessment of the development and improvement of international and national regulationslegal acts that gradually depart from archaic approaches to the definition of regulatory law through more effective analysis.
 Thus, in this article special attention is paid to theoretical and applied problematic issues of determination of «seat of arbitration». Due to clear inconsistencies and uncertainty in the national legislation and enforcement activities of many countries regarding the place of arbitration, this leads to numerous «procedural traps» in considering applications for recognition and enforcement of the award of international commercial arbitration.
 The author pays special attention to the analysis of the legislative regulation of the place of arbitration in Ukraine. And, from the perspective of the jurisprudence of the European Court of Human Rights and the Supreme Court, conclusions are drawn regarding the corresponding contradictions in the definitional apparatus.

STUDY ON THE LEGAL ISSUES OF INTERNATIONAL ARBITRATION INSTITUTION SETTLING IN CHINA

The international arbitration institutions settling in China is not only the need of building an attractive arbitration seat in China, but also the need of facilitating dispute settlement between Chinese and foreign parties, promoting the development of arbitration institutions and serving international trade and investment. Due to China's previous legislative and judicial practices, international arbitration institutions are faced with difficulties such as uncertain institutional identification, limited business scope and unclear award recognition and enforcement. However, as China's ascension arbitration credibility construction, China is taking active measures in judicial, administrative and legislative aspect to clarify the legal status of international arbitration institutions, broaden the business scope, promote the validity of arbitration agreement determination, and clear the nationality of arbitration award to recognition and enforcement. These positive measures demonstrate China's friendly attitude of vigorously supporting arbitration, and create a good prospect for international arbitration institutions in China.

AN EXPLORATORY STUDY OF MACAO'S ROLE AS AN ARBITRATION SEAT AND VENUE FOR SINO-LUSO COMMERCIAL DISPUTES

Objective: Over the past decade, arbitration has grown in popularity as a method of resolving commercial disputes worldwide. However, this practice is relatively new in Macao SAR. Recently, official plans were announced to make Macao as a seat of arbitration for commercial disputes between China and Portuguese-speaking countries (Hereinafter PSCs). This article is dedicated to explores the possibility of Macao undertaking and implementing such a role. Accordingly, this article addresses the following issues: What are the strengths and weaknesses of Macao as a seat and eventually as venue for hosting international commercial arbitration between Chinese and PSCs entrepreneurs? Methodology: A mixed-method approach of legal doctrinal and empirical research was used in this article. We first included a thorough study of the concept of arbitration followed by analysis of various legal journals and legislations, including Macao, China, and PSCs’ arbitration laws. An empirical research was then used to collect data by surveying and interviewing with both lawyers and arbitration practitioners from Macao, China and PSCs. Results: This article argues that the strength of Macao resides in the similarities between its legal system and that of the China and PSCs and the languages advantage (Chinese and Portuguese both official languages). In spite of this, arbitration is still relatively underutilized in the region, and there is a limited number of arbitrators and legal professionals with bilingual proficiency. Contributions: This article contributes to the identification of the opportunities and challenges that Macao faces in its potential future development as a seat/venue of arbitration between China and the PSCs.

Delocalized Arbitration: The Weakening Role of the Seat of Arbitration

Delocalized Arbitration: The Weakening Role of the Seat of Arbitration

Kripto-imovina i arbitraža u Srbiji

Blockchain and digital assets are the new frenzy. What seemed like just another fad is now here to stay. Usage of blockchain and digital assets on a global scale and in greater volume necessitates a deeper scrutiny of the technology and its impact on the world and the legal and economic landscape beyond the initial analysis of its applicability and regulation. This paper focuses on the intersection of blockchain, digital assets and arbitration in Serbia. It analyses whether Serbia is suitable for digital asset disputes as a seat of arbitration and jurisdiction for recognition and enforcement of arbitral awards. The paper aims to answer very specific questions on crypto assets in the arbitration procedure and potential issues with these arbitration cases in Serbia. The conclusion it reaches is that Serbia is indeed a suitable jurisdiction for both the arbitration procedure itself and the recognition and enforcement of arbitral awards, but that idiosyncrasies of the Serbian legal system, and particularly judiciary, give rise to certain issues.

Article: The Concept of the Seat in International Arbitration: Unlocking the Judicial Challenge of Interpretation of Conflict of Laws

The continuing growth of international commerce has inevitably led to a situation where more and more countries, via their state entities and private companies, find themselves parties in disputes to be resolved through international arbitration. In Africa, particularly following the African Union Free Trade Agreement of 2018, the growth in cross-border and international investment and the maturity of the transaction landscape has led to a proportionate increase in dispute resolution proceedings. Sharore (O. Shasore, Nigeria. ‘The Seat’ of Arbitration – Approach to Arbitral Proceedings, Mondaq Africa Law Practice (2018)) argues that this activity arises from the interplay among relevant and applicable laws, the arbitration agreements, and the conduct of the proceedings. In this context, the arbitration ‘seat’ is especially important because previous studies have found that the reasons for preferring any one seat over others are strongly related to observed judicial attitudes toward arbitration and the legal infrastructure in that jurisdiction (M. T. Birgonul et al., Comparison of an Emerging Seat of Arbitration and Leading Arbitration Seats and Recommendations for Reform, 10(1) J. Legal Aff. & Disp. Resol. Eng’g & Reconstruction (2018)). In India, for instance, despite the country’s importance as a juridical seat of arbitration given under the 1996 Act, the jurisdiction of the courts over arbitral proceedings has remained with the civil court and high court. Considering international arbitration in general, the conflict between juridical seat and court jurisdiction has persisted because the roles of arbitral seat and venue (as decided by conflict of laws) have not been properly distinguished (Duvva Pavan Kumar, The Viewpoint: Seat of Arbitration v. Territorial Jurisdiction – Dichotomy Continues (2020), https:// www.barandbench.com/view-point/seat-of-arbitration-vs-territorial-jurisdictiondichotomy- continues (accessed 4 Mar. 2021)). This article examines how, in the absence of a clear and unambiguous clause specifying applicable law, the Nigerian courts and indeed other courts have adopted a seat-driven approach to resolving these difficulties. In conclusion, the article outlines the room for improvement that may exist.

O‘zbekistonda xalqaro tijorat arbitraji haqida yangi qonunchilik: amaliyorning fikri

As an international arbitration practitioner, one of the initial inquiries we make when discussing the choice of arbitration seat with clients is whether the prospective jurisdiction has adopted the UNCITRAL Model Law. This question holds significant importance. We are only about 45 minutes into this conference, and we have heard extensive discussion of the Model Law already, and I think that is for a good reason. The Model Law really does reflect the state of the art in international arbitration practice as Christina Pak alluded to earlier. When a country adopts a version of the UNCITRAL Model Law as its own national arbitration law, it sends an immediate signal to investors and members of the business community that the law is a good and reliable law, i.e., the type of law that one needs to help to develop that jurisdiction as a strong seat of arbitration and facilitate the attraction of foreign investment and trade. In the instance of Uzbekistan, when practitioners in Uzbekistan and in the region and internationally ask whether the country has an arbitration law based on the UNCITRAL Model Law, of course, the answer to that question now is “yes”.

Article V(1)(e) of the New York Convention: To Enforce orNot to Enforce Set Aside Arbitral Awards?

The recognition and enforcement of arbitral awards which are set aside at the seat continues to be a ‘hot’ topic, triggered by the increasing number of cases in which the prevailing party in the arbitration attempts to enforce such award in various jurisdictions where the assets of the award debtor are located. Such jurisdictions may have different approaches to the application of Article V(1)(e) of theNew York Convention providing for the possibility that courts refuse recognition and enforcement of arbitral awards already set aside. Kluwer Research confirms, that, first, this ground under Article V(1)(e), while the most successfully argued ground under Article V of the New York Convention, is only upheld in 34% of the cases, and that, second, there are diverse approaches of the national courts in assessing such ground, ranging from deference to the courts of the seat of arbitration, to a truly delocalized, transnational approach to the recognition and enforcement of awards. set aside, recognition and enforcement of arbitral awards, arbitral awards, local standard annulment, international standard annulment, annulment, seat of arbitration, arbitration