Seat Of Arbitration Research Articles

EQUAL TREATMENT OF PARTIES IN INTERNATIONAL COMMERCIAL ARBITRATION

AbstractAlthough fair trial guarantees have always been recognised as constituting an integral aspect of international arbitral proceedings, this has largely been viewed through the lens of civil procedure rather than as a matter of public law and human rights. This state of affairs has further been compounded by the confidential nature of arbitration and the relative scarcity of set aside (annulment) proceedings before the courts of the seat of arbitration on the grounds of unequal treatment, and before human rights bodies such as the European Court of Human Rights. Moreover, it has always been difficult to reconcile contractual freedom and the advantages offered by arbitration with equal treatment and fair trial claims. This article demonstrates the existence of a set of general principles concerning the meaning and content of equal treatment, which are consistent with its commercial (and civil procedure) and human rights dimensions. The basis of this conclusion is Article 18 of the UNCITRAL Model Law on International Commercial Arbitration, as consistently interpreted and adapted by local laws and judgments, arbitral statutes and determinations by the European Court of Human Rights.

Choice of Law in Court of Arbitration for Sport: An Overview

The present article seeks to discuss the issues of transnational law involved in the Court of Arbitration for Sport (CAS) tribunal. It is the highest international court for the resolution of sports-related disputes. The tribunal deals with various kinds of disputes and issues like applicable law, the seat of arbitration and domicile play a pivotal role in the outcome of the case. In the contemporary era, we have a body of international sports law known as lex-Sportiva. It is global, transnational, and stateless. It is not just international law but the transnational law. It is an emerging body of international law with some similarities to lex-mercatoria, a much older and well-established body of international commercial law. In this article, the researcher will look into the various aspects of private international law involved in the CAS arbitration. It focuses on the issues related to the conflict of law in the CAS tribunal. It has examined the provisions of the seat, domicile, choice of law, and their implication on the outcome. In the last part has discussed the contemporary debate between International Sports law and global sports law.

Kewenangan Pengadilan Negeri Jakarta Pusat Dalam Pembatalan Putusan Arbitrase Di Janewa Swiss (Studi Kasus PT. Pertamina dan PT. PLN melawan Karaha Bodas Company)

This research examines how the competence/authority of the Central Jakarta District Court in rejecting the arbitration award in Geneva, Switzerland which is final, binding and enforceable in resolving business disputes of PT. Pertamina and PT. PLN against Karaha Bodas Company. This paper uses normative legal research. The result of this research is that international arbitration decisions are final and binding on the parties. Two legal remedies may still be made against this decision, namely the rejection and cancellation of the implementation of foreign arbitration. The emergence of two legal remedies for annulment of the Geneva arbitration award in both the Swiss Federal Court and the Central Jakarta District Court has caused a lot of debate on which court is authorized to annul the Geneva arbitration award. With the appointment of Geneva as the place of arbitration (the arbitration seat) and the law underlying the arbitration dispute settlement (Lex Arbitri), the Swiss Federal Court has the authority to annul the Geneva arbitration award. Thus, the Central Jakarta District Court has no competence to reject the Geneva arbitration award .

Worldwide Freezing Order의 국제적 동향 -영국에서의 논의를 중심으로

소송상대방의 재산 내지 다툼의 대상이 되는 현상을 동결하거나 임시로 잠정적인 법률관계를 형성시켜 두는 조치는 판결의 집행을 담보하기 위한 제도로서 여러 국가에서 널리 사용되어 왔으나, 영국은 한 걸음 더 나아가 피신청인의 역내/역외자산을 일괄하여 동결하는 처분, 즉, 역외적(域外的) 효력을 가지는 자산동결처분(Worldwide Freezing Order, 이하 ‘WFO’)을 확립하여 많은 주목을 받고 있다.<BR> 이른바 “Mareva Injunction”이라고도 알려진 WFO는 1975년 처음 그 모습을 드러낸 이후 수많은 판례를 통해 발전하여 오다가 현재 영국의 1998년 민사소송규칙(Civil Procedure Rules 1998) 25.1(1)(f)에 근거를 두고 있는 안정적인 제도로 정착되었는데, 특히, 브뤼셀/루가노협약(Brussels/Lugano Convention)이나 헤이그 재판관할합의협약(Hague Convention on Choice of Court Agreements)의 체제하에 있는 국가에서 본안소송이 제기되거나 제기될 예정에 있는 때에도 WFO를 발령할 수 있는 관할권을 가지는 등 영국법원이 가지는 권한은 막강하다.<BR> 무엇보다도 WFO는 책임재산을 확보하는 과정에서 피신청인에게 그 보유자산에 관한 정보를 구체적으로 공개하도록 강제하고 있을 뿐만 아니라, 일정한 요건이 충족된 경우에는 WFO를 직접 발령받지 않은 제3자에 대해서까지 영향력을 미칠 수 있어서 그 파급력이 크다. 가령, 피신청인의 계좌를 관리하는 은행과 같은 금융기관은 그 명령에 명시된 구체적인 준수사항으로부터 많은 영향을 받게 되므로, 관련 내용을 정확히 숙지하여 업무를 처리해야만 하는 부담을 안게 된다. 나아가 최근에는 이와 같이 광범위한 효력을 가지는 WFO가 국제상사중재의 영역에까지 진출하여 그 활용도가 점점 높아지고 있다. 심지어 영국법원은 중재절차의 중재지(仲裁地, arbitral seat)가 영국이 아닌 경우에도 WFO의 발령을 허용하여 중재절차 상대방의 책임재산을 확보하는 수단으로 위 제도를 적극 활용하고 있다.<BR> 물론, WFO는 특정 자산에 대한 대물적(對物的, in rem) 처분이 아닌 대인적 처분(對人的, in personam)에 불과하여, 피신청인이 이를 위반하여 해당 재산을 처분하더라도 거래상대방과의 법률관계에는 아무런 영향이 없다. 즉, 피신청인은 단지 법정모독죄(contempt of court)를 저지른 것으로 취급되어 영국법원으로부터 제재를 받을 뿐인 것이다. 하지만, 이를 단지 하나의 외국법원이 발령한 형식상의 명령이라고 치부하고 사실상 무시하기에는 영국이나 영국법원이 가지는 국제적인 법률/비즈니스 중심지로서의 역할이 크기 때문에 향후 영국과 관련된 사업 등을 염두에 두고 있는 당사자의 입장에서는 WFO에서 명령하고 있는 사항을 과감하게 무시하기가 쉽지 않을 것이다. <BR> 따라서 우리나라의 개인/법인이나 금융기관들도 위와 같은 WFO의 효력에 그대로 노출될 수 있다는 점에서 이에 관심을 가질 필요가 있다. 피신청인으로서 WFO를 직접 위반하는 경우는 물론이고, 제3자의 지위에서 그 내용을 제대로 숙지하지 못하여 결과적으로 피신청인의 WFO 위반에 협조하게 된 경우에는, 영국법원으로부터 제재를 받아 국제적인 영업활동에 제한을 받을 수 있기 때문이다. 반면에, 이 제도를 잘 활용한다면 신청인으로서는 거래상대방의 자산 현황을 쉽게 파악할 수 있을 것이다.<BR> 미연방대법원(U.S Supreme Court)도 미국이 입법을 통하여 WFO와 같은 제도를 확립하는 것은 가능하다면서 그 도입가능성을 열어두었고, 실제로 호주, 홍콩, 싱가포르와 같은 많은 커먼로(Common Law) 국가에서는 저마다 WFO에 관한 독자적인 법리를 발전시켜 나가고 있는 점 등에 비추어 보면, 앞으로 WFO는 국제적인 비즈니스 무대에서 더 활발하고 빈번하게 활용될 것으로 보인다. 우리나라에서도 WFO에 관하여 더욱 많은 관심과 연구가 필요한 때이다.

Improving Homegrown International Arbitration in Africa

The African economy is one that is constantly developing in spite of economic challenges like declines in global commodity prices. As one of the most profitable regions in the world, the continent continues to be a very conducive hub for investments. The level of investments witnessed in Africa, therefore, opens a floodgate of disputes. When these disputes occur, parties often resort to arbitration. While it would ordinarily be expected that these arbitral hearings are had in Africa, many of the commercial agreements have foreign arbitral seats selected. This article, therefore, considers the exportation of international arbitration in Africa and makes a case towards the improvement of homegrown international arbitration.

Правовое обоснование допустимости соглашения о применимом праве в международном коммерческом арбитраже

Problem statement. Specific nature of international commercial arbitration raises an issue whether in this case lex fori is capable to be the ground of choice of law agreement permissibility. Topicality of the issue is determined by the Supreme Court of the Russian Federation explanation of 09 July 2019 to courts referring issues of choice of law permissibility to lex fori. Goals and tasks of the research. Goal – research of legal ground of choice of law permissibility in international commercial arbitration. Tasks: to study the ICAC approaches to choice of law acknowledgement; to advance a hypothesis on the influence of explanation by the Supreme Court of the Russian Federation in respect of article 1210 of the Russian Federation Civil Code to the ICAC practice and to draw a conclusion on the international commercial arbitration «procedural documents» provisions as the ground for it to acknowledge choice of law agreement. Methods. Methods of formal logic play a key role: analysis of the ICAC practice permitted to distinguish three approaches to choice of law agreement permissibility grounding; induction of ratio decidendi of the ICAC separate decisions – to draw a conclusion on the article 1210 of the Russian Federation Civil Code influence to the ICAC practice in general and on this basis to advance a hypothesis on possible influence of explanations by the Supreme Court of the Russian Federation in this respect; comparison of the international commercial arbitration rules – to draw a conclusion that these provisions are the ground of choice of law acknowledgement by the tribunal. Results, brief conclusion. Firstly, three approaches of the ICAC to the choice of law agreement permissibility grounding have been revealed and in each them the ICAC relies on the article 1210 of the Russian Federation Civil Code. As far as the article 1210 has an impact on choice of law permissibility grounding within the ICAC, explanations by the Supreme Court of the Russian Federation in respect of this article are capable to have a possible impact on the ICAC practice. Secondly, within the international commercial arbitration the choice of law agreement permissibility grounding should be based on provisions of its «procedural documents», e. g. national law on international commercial arbitration, rules of institutional arbitration or ad hoc arbitral tribunal, – these rules (but not conflict of laws addressed to courts of the state of the arbitration seat) could be considered as its peculiar lex fori.

Enforceability of Interim Measures ordered by Arbitral Tribunals: The Issue and Possible Remedies in International Commercial Arbitration

The author in this paper has tried to bring forth the theoretical concept, the practical problems and best international practices for enforcement of interim/provisional measures (in some cases interim award) by arbitral tribunals and national court of competent jurisdiction. This paper dwells into the idea of what constitutes best international practices in international commercial arbitration sphere which leads parties to the arbitration proceedings to opt for enforcing interim measures either by arbitral tribunals, whose measures against securing interim rights needs to be legally enforced by and realised by the court at the seat of arbitration, which leads to more time, expense and in some cases, frustration of rights of the applicant and holder of interim remedies against enforcing interim measures straight away by the court at the seat of arbitration which holds more sanctity and holding in law and enforcing and binding on the arbitral tribunals to secure the interim applicants rights. This paper has critically analysed the practical problems associated with enforcing parties interim measures by arbitral tribunals and the national courts vide the triple identity test/three-test approach of enforcement of interim measures. At last, the author has discussed the pros and cons of enforcing such interim measures under the light of the New York Convention with the help of case laws leading to enforceable and non-enforceable interim measures.

The Restrictive Approach to Legal Representation in Arbitration Proceedings and Its Unintended Consequences in Nigeria

The issue of legal representation in arbitration proceedings accounts for one of the sub-factors of ‘formal legal structure’ and ‘national arbitration law’ that disputing parties consider before choosing a seat of arbitration. Indeed, the ability of disputing parties in arbitration to freely select their desired representatives is embedded in the foundational principle of party autonomy. In Nigeria, a literal interpretation of the national arbitration rules prevents parties from selecting persons not admitted to the Nigerian bar as their representatives in arbitration proceedings. This article examines the impact of this restrictive approach on the attractiveness of Nigeria as a seat of arbitration. The article identifies scope for reform in the law and makes suggestions to create a more liberal legislative and judicial framework in order to promote Nigeria as a preferred seat for arbitration. Arbitration, Legal representation, Seat, Nigeria

Appealing the Applicability of the Indian Arbitration Act 1996 to Non-ICSID Investment Arbitrations

Non-ICSID investment arbitrations have been held by Delhi High Court to be outside the scope of the Indian Arbitration Act of 1996. They have been considered fundamentally different as their roots are in public international law, in addition to their non-commercial nature. However, the court escaped a proper analysis of the hybrid foundations of an investor-State relationship, the seat theory, and issues of applicable law – which persuasively establish the applicability of the 1996 Act. In other words, the issue at the heart may be considered to be the nature of an investor’s substantive rights under an investment treaty and how they accommodate with India’s national law principles, when an investor has invoked arbitration against the host-State, which both parties accept, is subject to the law governing at the seat of arbitration. Besides the ongoing cases, India is now potentially facing two enforcement proceedings as an award debtor, in the near future, that may arise from investment claims by Cairn Energy PLC and Cairn UK Holdings Limited (under the UK-India BIT) and by Vodafone Group PLC (under the Netherlands-India BIT). Thus, the question of the applicability of the 1996 Act in respect of these non-ICSID arbitrations is foreseeable and may be addressed by the Supreme Court of India finally in the near future.

Reconsidering the Issues Regarding Validity of Arbitration Agreements Referring to Non-Existing Arbitral Institutions or Including Uncertain References to Arbitral Institutions and the Turkish Experience

Arbitration agreements referring to non-existing arbitral institutions or including undefined references to arbitral institutions are significantly observed in international arbitration practice. Validity of such arbitration agreements becomes debatable due to the pathological intent thereof. If the pathology may be resolved by way of interpretation in the manner that leaves no room for doubt, the ideal solution is resolution of such problems by way of interpretation by means of supporting parties’ common intent towards arbitration and of protecting legitimate expectations of parties in compliance with bona fides principle. However, if interpretation of an undefined reference in an arbitration agreement leads to uncertainty about competence of certain arbitral institutions, such agreement aimed at institutional arbitration either may be accepted to be turned into an agreement aimed at ad hoc arbitration or may be held null-and-void, depending on position of law of seat of arbitration. If seat of arbitration is also undefined or non-existing, arbitration agreement shall be held incapable of being performed and null-and-void. Attitude of Turkish courts seems in conformity with the three approaches to a large extent and may be qualified as satisfactory but determining validity of such arbitration agreements without reference to any law applicable and disregarding the right of access to justice should be criticized.

Applicable law to the arbitration agreement in general conditions of sale available on seller's website: A pro-arbitration approach in the jurisprudence of the Supreme Court of the Federation of Bosnia and Herzegovina

The Supreme Court of the Federation of Bosnia and Herzegovina had to determine the applicable law to the arbitration clause contained in general conditions of sale on seller's website. The sales agreement was concluded orally and the reference to the website with general conditions of sale was made on a pro forma invoice paid by the buyer. The arbitration clause provided for ICC Rules and seat of arbitration in Amsterdam, while French law was chosen to apply to the contract. The buyer, a domestic company from Bosnia and Herzegovina, filed for damages before domestic courts, claiming that the arbitration clause was not consented to, nor was it concluded in written. The Supreme Court of the Federation of Bosnia and Herzegovina issued in the "chicken breed" case in 2019 a pro-arbitration judgment with reference to the New York Convention of 1958 and European Convention on Interna New York Convention of 1958 and European Convention on International Commercial Arbitration of 1961. It is a landmark decision on one of the most difficult questions of applicable law to formal and substantive validity of the arbitration agreement.

Отмена решений международных инвестиционных арбитражей государственными судами по месту арбитража (на примере саги о ЮКОСе): шоу продолжается?

Отмена решений международных инвестиционных арбитражей государственными судами по месту арбитража (на примере саги о ЮКОСе): шоу продолжается?

Ethics and International Arbitration: Coaching a Witness Under Different Perspectives

This article aims to analyse the topic of witness coaching in international arbitration. Ethical obligations are different amongst the jurisdictions and there are different ‘conflict rules’; so, a lawyer can face a positive conflict of ethical rules (to wit, its own home rules and the rules of the seat of arbitration). The issue of contact between lawyers and witnesses (witness preparation, witness coaching and witness familiarization) is a conflicting one because it is differently regulated and this can lead to an uneven playfield. The arbitral community has tried to solve this clash of rules, but a final and satisfactorily solution has not been found yet. In conclusion, the author suggests a possible way to solve (or to minimize) this conflict among different points of view.

Arbitrating down under: highlights and lessons learned from 2018 to 2019

Australia is rapidly gaining ground as an attractive seat for international arbitration, particularly within the Asia-Pacific region. The last financial year saw Australia’s Courts taking steps towards further supporting the use of arbitration within Australia’s wider legal framework for dispute resolution. This article considers some of the highlights from the 2018 to 2019 financial year case law involving arbitration. From a review of the diverse range of decisions handed down in the 2018–2019 year, we have identified the key points in relation to arbitration agreements on the one hand and arbitral awards on the other, which we consider in detail in this article. In relation to arbitration agreements, we note that the High Court has adopted an orthodox approach to contractual interpretation by stating that arbitral agreements should be construed ‘by reference to the language used by the parties, the surrounding circumstances, and the purposes and objects to be secured by the contract’. Further judgments make it clear that, in interpreting arbitration clauses, Courts are hesitant to refer disputes to arbitration where the dispute is not within the scope of the arbitration agreement. In relation to arbitral awards, we consider a number of decisions which highlight that there is a high threshold for parties seeking to set aside an arbitral award by virtue of alleged misconduct on the part of the arbitrator and that Courts may not enforce an arbitral award if an application to set aside that same award has been filed in the jurisdiction in which the award was made.

Allowing the exclusion of set-aside proceedings: an innovative means of enhancing singapore’s position as an arbitration hub

In some jurisdictions, parties who choose arbitration as a means of resolving their disputes can contractually waive the set-aside mechanism, thereby limiting the extent of judicial review that will be available after the award is issued. In recent years, parties and institutions have also shown an increasing interest in such contractual waivers because it is thought that reducing post-award challenges will increase the efficiency and finality of arbitration. However, the validity of contractual exclusions of set-aside proceedings remains a controversial issue. While some jurisdictions uphold the validity of such clauses, others have held that set-aside proceedings cannot be waived in advance, citing fundamental policy reasons. This paper analyses the reasons for each regime and explores whether laws that allow contractual exclusions of set-aside proceedings would be beneficial in the context of Singapore, particularly in enhancing its position as a choice seat for arbitration.

A Research on International Commercial Arbitration with reference to the Brexit

International commercial arbitration is an alternative method of dispute resolution. It is regarding disputes arising out of commercial transactions conducted across national boundaries and it allows the parties to bypass litigation in their national courts. The aim of the researcher is to understand how the position of London as the favoured seat of Arbitration will change after Brexit. Secondly, the paper also focuses on the use of international arbitration as a tool to solve investor-state disputes. The present paper was analysed through the non-doctrinal research methodology and empirical and descriptive method of research was used. The present analysis was made through random sampling method where the survey was taken from common public, professionals, etc through a structured questionnaire. The sample size in the present analysis is 1669 samples. The research tools used in the present paper are cross tabulation, chi-square and frequency. It can be concluded that the position of London as the popular seat of arbitration will not be affected as the English Law is generally considered as the immediate choice of law for around most of the commercial contracts. Secondly, as far as investorstate dispute resolution is considered, arbitration can become a popular choice in future after the amendments were made in 2017 to make it more transparent and cost efficient.

How to Obtain Evidence from Third Parties: A Comparative View

Obtaining evidence from third parties poses a unique problem in international arbitration. Unlike litigation, the consensual and private nature of arbitration means that tribunals lack the authority to compel third-party disclosure given to many State courts. Yet even if they are not subject to the tribunal’s jurisdiction, third parties to the proceedings may still possess valuable evidence. This article considers the practical options for obtaining evidence from third parties, whether through requests by the arbitral tribunal itself or judicial assistance from State courts. In the latter case, national laws must balance the interest of supporting arbitration against the risks of judicial interference and the potential burden of disclosure on third parties, and resolve this dilemma in very different ways. Given the lack of uniformity on judicial assistance, and the fact that evidence is frequently located in a different jurisdiction to the arbitral seat, practitioners may make strategic use of procedures such as those under US federal law to gain the benefit of third-party evidence

Like a Poor Marksman, ONCA Keeps Missing the Arbitration Target

This comment calls out the struggles of the Court of Appeal for Ontario (“ONCA”) with foundational arbitration principles like seat theory, competence-competence, and, uniformity in applying legal instruments on international arbitration, in particular, its Uber and Disney decisions. The ONCA’s struggles risk exposing Ontario as an undesirable arbitral seat. Any good arbitration’s protagonist is the tribunal, but even the best tribunal needs a good supporting cast in the form of supervisory courts. Ontario courts must adapt to fit the part.

Regionalism: Is it Essential to the Advancement of International Arbitration in ASEAN?

Over last two decades, we were witnessing the marked increase of trade and investment in Asia, especially intra-ASEAN and between China-ASEAN, inducing the establishment of many international arbitral institutions and promulgation of arbitration laws in the Member States. In which, Singapore International Arbitration Center has become the most preferred arbitration seat in the region. In despite of the fact that the establishment of a regional arbitration center, and the harmonization of mechanism of recognition and execution of foreign judgements and arbitral awards had been discussed, it is unlikely that both two subjects would be considered and realized in near future due to the state immunity and differences in politics and jurisdictions of the Member States. This paper shall investigate the necessity and alternative construction of the regionalism in international arbitration which may facilitate the commercial and investment disputes settlement in ASEAN by analyzing their current context and potential processes. This examination shall also reveal the impacts of the capital flows from China’s Belt and Road Initiative, European Union countries and the competition amongst the different other mechanisms of international disputes settlement on the advancement of the international arbitration in our region.

Uluslararası Ticari Tahkimde Taraf Vekillerine Uygulanan Etik Kurallar ve Uygulamada Karşılaşılan Sorunlar

<span style="color: rgb(0, 0, 0);">Parties in international commercial arbitration are represented either by one or more party representatives registered with multiple bars or not registered with a bar at all or by a layperson. The seat of arbitration is usually where neither party’s representative is licensed. This diversity arising out of the very nature of international arbitration gives rise to the application of multiple ethical rules to party’s representatives and brings up the question of which ethical rules shall be applicable to parties’ representatives, who shall be the competent authority in case of breach and whether the arbitral tribunals have legitimate power to sanction the parties’ representatives. In this article, we first examine existing ethical rules regulating the conduct of party representatives in international arbitration. Then we explain the content and difficulties encountered in the application of the said rules. Finally, we discuss the gaps of the current regulations and the enforcement issue.</span>