Seat Of Arbitration Research Articles

Challenges in the Taking of Evidence in Arbitrations Seated in Mainland China

Arbitration is often hampered by obstacles to the taking of evidence, either because one party fails to produce relevant documents when requested or the documents are held by a third party outside the tribunal’s powers. Parties engaged in arbitration seated in Mainland China are constrained by the Chinese state court’s limited powers to assist in evidence taking. This article considers the wider scope of options for the taking of evidence in arbitrations seated in Mainland China. The first port of call may be to seek an order from the arbitral tribunal to impose sanctions within the arbitration, such as adverse inferences or adverse cost orders. If the arbitral tribunal cannot compel the recalcitrant party or a third party to produce documents or other evidence, the party may seek assistance from the court at the arbitral seat or a foreign court connected to the arbitration. This article compares the options for state court assistance in evidence taking available in the state courts of Mainland China, England and Wales, Hong Kong, and the United States. Practitioners should be aware that the powers of state courts to assist in evidence taking in international arbitration varies widely between these jurisdictions, from allowing only orders for preservation of key evidence in Mainland China to wide-ranging discovery from third parties by way of Section 1782 applications in the Unitead States.

The Good Faith Principle in the Context of the Enforcement of New York Convention Awards: An Analysis of Hong Kong’s Position in Light of the Apparently Conflicting Court Decisions

In the recent landmark case Astro v. Lippo, the Hong Kong Court of Appeal adopted an approach of applying the good faith principle in the context of the enforcement of New York Convention awards that departed from the previous approach adopted by the Hong Kong Court of Final Appeal in the Hebei case. This article aims to ascertain Hong Kong’s position on the good faith principle in the situation that led to the apparently conflicting approaches. This is concerned with the situation where an award-debtor could have raised, but failed to raise, objections to challenge the award before the supervisory courts of the seat of arbitration, but applies to resist enforcement of the award before the enforcing court. This article argues that the apparently conflicting approaches should be reconciled by differentiating the grounds of resisting enforcement between jurisdictional and non-jurisdictional grounds. In the author’s view, the good faith principle is not applicable if the ground for objection relates to jurisdiction. The award-debtor can still seek resisting enforcement on jurisdictional grounds before the enforcing court. If the ground does not relate to jurisdiction, a breach of good faith would be established. The award-debtor would then be precluded from raising the relevant points (i.e., factual foundation) relating to the grounds of resisting enforcement that it could have, but did not raise at the supervisory courts of the seat before the enforcing court.

Arbitrator’S Impartiality Under Article V(1)(D) Of The New York Convention

An arbitrator’s lack of impartiality provides grounds for non-recognition of a foreign or non-domestic arbitral award under Article V(1)(d) of the New York Convention where the parties’ agreement or the law of the arbitral seat required impartial arbitrators. This contribution examines the structure and content of Article V(1) (d) of the New York Convention through the lens of arbitrator’s alleged bias. In the vast majority of such cases, courts have rejected objections to recognition under Article V(1)(d), including on grounds of waiver. Complaints about the qualification of an arbitrator’s impartiality must be invoked initially during the arbitration proceedings. The party cannot resist the enforcement on the grounds of irregular composition of the arbitral tribunal, in cases where it participated in the arbitral proceedings without objection or failed to exhaust all legal remedies at the seat of arbitration within the time limits prescribed by the applicable national law. Complicated issues arise when there is conflict between parties’ agreed composition as to the qualification of impartiality of the tribunal and mandatory law of the arbitral seat. The effect of bias on the arbitral award or the issue of waiver are also taken into consideration by the courts when assessing the defence of the irregular composition of the arbitral tribunal.

A Study on the Innovative Legal System for Ad Hoc Arbitration in China’s Free Trade Zones

Ad hoc arbitration is one of the most important means to resolve civil and commercial disputes and bring considerable amount of foreign exchange income in many oversea jurisdictions. Mainland China’s Supreme Court issued a judicial opinion to give a limited admission of ad hoc arbitral awards concerning Pilot Free Trade Zones（PFTZ）. That opinion has been undoubtedly an important progress in the history since the Communist Party took control of China. However, that opinion not only uses three vague terms named as a specific place, specific persons and specific arbitration rules, but also keep silent on other issues concerning ad hoc arbitration. As far as the seat of arbitration, China should allow the parties to select freely in accordance with international practice and authorize the ad hoc arbitral tribunal to make the decision in the absence of a choice by the parties. As for the issue of the ad hoc arbitration rules, the innovative provisions of our country can be as follows: under the premise of not violating the mandatory rules of law, the parties are allowed to independently formulate or choose appropriate arbitration rules for them; if the parties do not make or choose, the arbitral tribunal shall determine the appropriate arbitration procedure on the same premise. In terms of arbitrators” norms, the corresponding innovations should be that, with the exception of a few serious offenders and specific categories of persons, all those with civil capacity are eligible to act as ad hoc arbitrators; at the same time, if the parties do not have a specific choice, it is stipulated that according to the default rules, the people’s court appoints arbitrators according to certain standards. The interim arbitration measures of protection have different significance for the claimants & the respondents, and the relevant innovations should include: to give the ad hoc arbitration tribunal the power to issue interim measures of protection. In addition, with regard to the system of setting aside ad hoc arbitral awards, innovative measures should base the jurisdiction of people’s courts upon the arbitral seat whether or not that seat involving the ad hoc arbitration is located within PFTZ. Finally, in order to make ad hoc arbitration go smoothly, China’s Standing Committee of National Congress should empower province-level congresses or their standing committees to create further innovative provisions on the seat of arbitration, arbitrators, arbitral rules, judicial review of arbitral awards related to the above-mentioned type of arbitration.

The Existence of the Doctrine of Severability and Competence-Competence under the Constellation of Indonesian Arbitration Law

Abstract When the parties choose Indonesia as the seat of arbitration, one might inquire whether Indonesian legal system is in conformity with the doctrines that developed in the field of international commercial arbitration. To fulfill that purpose, this paper discusses: (1) under the umbrella of severability doctrine, the agreement to arbitrate or arbitration clause is not classified as an accessory to the principal contract; and (2) the competence-competence doctrine is not adopted perfectly on the account of the question whether the tribunal can decide on its own jurisdiction is not explicitly touched.

Arbitral autonomy and applicable and overriding law

ABSTRACTThis article examines themes associated with the role of arbitration and its interrelationship with the law generally. These include the extent to which parties to an arbitration agreement are free to choose the principles governing the procedural and substantive aspects of the arbitration. The article considers the circumstances in which such a choice may be affected or overridden by mandatory principles of law or court intervention, by the courts of the seat of arbitration or in enforcement proceedings in another jurisdiction. It identifies the potential tension between the interests of party and arbitral autonomy on the one hand, and the public policy which justifies court interventions in the arbitral process and governs enforcement of awards on the other. The tension has in a European context manifested itself recently in a marked dichotomy between the attitudes of European Union law to commercial arbitration and to bilateral investment treaty arbitration, presenting arbitrators and courts involved in the latter with potential dilemmas. It suggests that there is still scope for holistic development, recognizing the value attached to arbitration by the commercial community.

Free Zone Arbitration in the United Arab Emirates: DIFC v. ADGM: (Part I)

This article is published in two parts and discusses the concept and practice of free zone arbitration in the United Arab Emirates (UAE). More specifically, the article seeks to highlight the status quo of arbitration in the Dubai International Financial Centre (DIFC) and the Abu Dhabi Global Market (ADGM), both of which may serve as an offshore seat of arbitration in their own right. Both the DIFC and the ADGM offer a common law alternative to arbitration in onshore UAE. Part I of the article focuses on arbitration in the DIFC. It provides an introduction to the judicial and legislative framework of the DIFC, including in particular the main provisions and the operation of the DIFC Arbitration Law, the institutional framework of arbitration in the DIFC, the curial function of the DIFC Courts in DIFC-seated arbitrations, and the recognition and enforcement of domestic DIFC and foreign arbitral awards in the DIFC. Part I also discusses the DIFC Courts’ status as a conduit jurisdiction facilitating the recognition and enforcement of non-DIFC awards for onward execution in onshore Dubai and beyond.

Application of the New York Convention to the Enforcement of Arbitration Agreements

The 1958 New York Convention is indeed one of the most important instruments in international arbitration, contemplating not only the enforcement of arbitral awards, but also the enforcement of arbitration agreements under Article II (3). One of the perceived shortcomings of the Convention is the fact that it does not define which types of arbitration agreements can be enforced under it. The article takes into account some national legislations and judicial interpretations on the matter and contemplates the ways of interpreting the Convention so as to fill this gap. In this regard, Article II (3) is interpreted in conformity with Article I, which defines the Convention's scope of application based on the seat of arbitration. Moreover, this article discusses briefly a recent attempt to address the aforementioned shortcoming through the introduction of a hypothetical draft convention which would modernize the New York Convention.

An Anti-Enforcement Bias? The Application of the Substantive Public Policy Exception in Polish Annulment Proceedings

This article examines how Polish courts have dealt with annulment applications based upon purported violations of substantive public policy and measures the Polish jurisprudence against the standards developed by the national courts in England, France, Switzerland and Germany. It identifies an anti-enforcement bias of the Polish courts which, in sharp contrast to their European counterparts, still favour an expansive interpretation of the public policy exception and have surprisingly little qualms in engaging in a thinly veiled merits review with unclear boundaries. The markedly interventionist approach of the Polish judiciary encourages annulment applications, which both ill-serves the arbitral process generally and undermines recent efforts to promote Poland as a desirable seat for international arbitration specifically. A solution to these ills can only be found in a narrower interpretation of the substantive public policy exception, in harmony with the standards developed by the national courts in the major European arbitration centres.

The scope of the Arbitration Seat’s Exclusive Jurisdiction in Domestic Arbitrations

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Značaj Izbora Mesta Arbitraže (the Importance of the Choice of the Seat of Arbitration)

Serbian Abstract: Prilikom ugovaranja arbitražnog sporazuma veoma je važno da stranke obrate posebnu pažnju na dogovor oko mesta arbitraže, jer ono može imati znacajne implikacije na vođenje arbitražnog postupka. Glavna veza između arbitražnog postupka i nacionalnog prava neke zemlje je upravo mesto arbitraže. Ono određuje nadležnost sudova za odlucivanje po tužbi za ponistaj, te utice na tumacenje razloga za ponistaj arbitražne odluke, primenu procesnog prava, izbor merodavnog prava, zatim može da ukaže i na mesto održavanja usmenih rasprava, jezik vođenja arbitražnog postupka, izbor clanova arbitražnog veca i dr. Iz tih razloga, blagovremen, izricit i nedvosmislen sporazum stranaka o mestu arbitraže znacajno doprinosi efikasnosti postupka. U radu, ce prvo biti prikazani nacini određivanja mesta arbitraže, te ce biti ukazano na moguce implikacije izbora mesta arbitraže na arbitražni postupak. English Abstract: It is very important for the parties to pay special attention to the place of arbitration while drafting the arbitration agreement, since the place of arbitration can have significant implications on the arbitration procedure. The main link between arbitration proceeding and national law is the place of arbitration. It determines jurisdiction of courts to decide on challenge of the arbitral award, the reasons for the challenge itself, application of the law, and it can also affect the choice of the place of hearings, language of the arbitration, constitution of the tribunal. For those reasons, timely, explicit and unambiguous parties’ agreement on the place of arbitration makes the arbitral proceeding significantly more efficient and satisfying for the parties. In this paper, firstly it will be shown what are the ways of determining the place of arbitration and then, the potential implications of the choice of the seat of arbitration on the arbitration proceeding will be listed.

Comparison of an Emerging Seat of Arbitration and Leading Arbitration Seats and Recommendations for Reform

AbstractArbitration is an increasingly popular alternative form of resolution for construction disputes. After the establishment of the Istanbul Arbitration Center, the question of whether internat...

Procedural Models to Upgrade BITs: China's Experience

AbstractWith the rise of a new generation of investment policies, upgrading existing bilateral investment treaties (BITs) is of significant interest to states. China has upgraded 28 per cent of its investment treaties in various ways. Two investment arbitration tribunals and one highest court at the seat of arbitration have recently rendered decisions favouring the application of old Chinese BITs over the upgraded ones. China's experience with upgrading BITs may provide general policy discourse and direction for other countries planning to upgrade their BITs. Using China's experience, this article categorizes different methods of upgrading BITs into the Coexistence Model (parties to an old BIT join existing or new free trade agreements or a regional investment agreement), the Replacement Model (replace an old BIT with a new one), the Amendment Model (amend an old BIT by a protocol) and the Joint Interpretation Model (make a diplomatic announcement to interpret a BIT). This article also discusses the benefits and challenges of each model and concludes with directions for future BIT upgrading.

The Challenge of Arbitral Awards in Pakistan

An arbitrator in Pakistan is required to file an arbitral award in a civil court of competent jurisdiction for its recognition and enforcement if an arbitral award is domestic or before the concerned High Court if the arbitral award is international. The court of law is required to issue a decree upon submitted arbitral award if an interested party do not apply for modification or remission of an arbitral award and do not challenge it for setting it aside or for revocation of its recognition and enforcement within a prescribed time limit. The challenging process of an arbitral award can be started by the aggrieved party of an arbitration agreement at the seat of arbitration or at the place where recognition and enforcement of an arbitral award is sought. The aggrieved party to an arbitration agreement is required to challenge an arbitral award within a prescribed time limit if contracting parties have not excluded the right to challenge an arbitral award. Limitation for challenging an arbitral award in Pakistan is 30 days under article 158 of the Limitation Act 1908, starting from the date of service of notice of filling of an arbitral award before the court of law. Generally, 90 days are given for an appeal against decision of the civil court of law under section 96 of the Code of Civil Procedure 1908, it is therefore highly recommended that challenging time of an arbitral award should be increased from 30 to 90 days.

The Res Judicata Effects of Foreign Judgments in Post-Award Proceedings: To Bind or Not to Bind?

This comparative analysis explores the question of preclusive effects arising from arbitration related judgments, particularly when a foreign court has already ruled upon an issue relevant to the grounds for refusal under Article V of the 1958 New York Convention. It argues that arbitration-related judgments like exequatur or non-annulment decisions, along with the res judicata and estoppel effects arising from them, can be subject to recognition in other countries. The article thereby rejects some of the views contending that various legal obstacles stand in the way of such recognition, including its compatibility with the 1958 New York Convention. However, risks of forum shopping and undue imbalances in the parties’ rights ultimately support restricting this recognition to judgments rendered at the arbitral seat only. Such judgments should be able to preclude the re-litigation of identical issues in non-seat countries as a matter of res judicata and estoppel.

IMPACT OF THE RECENT REFORMS ON INDIAN ARBITRATION LAW

In order to give effect to the UNICITRAL Model Law on Arbitration and due to radical change in its economy as the result of the 1991 New Economic Policy (NEP) India enacted the 1996 Arbitration & Conciliation Act. This Act provides a pragmatic legal basis for resolution of commercial disputes outside the court procedures. It circumscribes the older laws and consolidates multiple legal norms dealing with arbitration. However, the experiences in application of this Act for the last 20 years suggest that it needs to be amended as it contains serious drawbacks primarily due to poor legal technique which necessitated excessive judicial interventions and judicial overreach having led to resentment among those willing to resort to alternative dispute resolution under this Act while keeping the seat of Arbitration in India. Several attempts were made by the successive governments aiming at amending the 1996 Act. Yet all those attempts failed. Finally the present Union Government under the leadership of the Prime Minister Mr. Narendra Modi was able to bring in sweeping changes in existing arbitration law. These changes were carried out with the commitment of the Government in doing business in India through the Ordinance route and proper legislative procedures which finally led to the amendments having come into force on January 1, 2016. This paper attempts to analyse the key changes brought through the 2015 Amendment Act and their impact on the application of arbitration law in India. Moreover, the authors overview the prospects of India to acquire the preferred position in International Commercial Arbitration in the future as envisioned by the present Modi Government.

Brexit and Arbitration: What Happens Next?

The purpose of this paper is to examine if Brexit may affect international commercial arbitration in the United Kingdom as well as in the European Union. In order to reveal this issue, firstly, it is analysed if Brexit has any effect on London as favourable seat of arbitration. Second, the author determines how Brexit may affect the recognition and enforcement of the foreign arbitral awards in both the United Kingdom and the European Union. Third, the paper deals with the anti-suit injunctions and their application in the United Kingdom after Brexit. When analysing the abovementioned issues, the author argues that Brexit will not affect international commercial arbitration in the United Kingdom and in the European Union but on the contrary – it may have very positive effects on this method of alternative dispute resolution. To reveal the subject-matter of the conference paper, the author analyses laws of the United Kingdom and the European Union as well as the relevant sources of international law. The author also bases his conclusions on the case-law and the opinions of legal doctrine.

Entrevista a Gary Born. El Arbitraje Internacional en debate

Is the choice of the arbitral seat still an important decision in international arbitration? Should arbitral awards be subject to greater judicial scrutiny? Should the appeal be in international arbitration? Is it possible that an annulled arbitral award is recognized under the New York Convention? Should the New York Convention be amended to achieve CNY 2.0? Is investment arbitration a system that works? Are the criticisms of investment arbitration valid? In this interview, Gary Born responds to each of these questions by addressing many controversial current issues in international arbitration.

Nigeria: Insolvency Law and Arbitration: Like Oil and Water?

Formal insolvency law proceedings are usually collective and centralised in nature, overriding certain pre-insolvency agreements in order to achieve specific down objective(s) for the benefit of all creditors. In contrast, arbitration favours privity of contracts and party autonomy. Parties’ agreement to arbitrate their dispute is considered as sacrosanct regardless of the circumstances. There is therefore a potential for conflict when a dispute touches on these two regimes. In In re United States Line, 197 F. 3d 631 at 640 (1999), a US court described such as “a conflict of near polar extremes” given that the insolvency policy “exerts an inexorable pull towards centralisation while arbitration policy advocates a decentralised approach towards dispute resolution.” This article examines the possible legal implications of formal insolvency proceedings on arbitration agreements, as well as the possible impact of arbitration agreements on insolvency proceedings. The analysis is limited to compulsory winding-up proceedings and where the seat of arbitration and the place of opening of insolvency proceeding is Nigeria. Different considerations will apply in cross-border insolvencies and international arbitral proceedings.

The legal implications of Indian parties resorting to foreign arbitration: decoding the decision in Addhar

The controversy regarding the power of Indian parties to agree on a foreign seat has been framed as follows: The Bombay High Court, in Addhar Mercantile Private Ltd v Shree Jagdamba Agrico (Decision of 12 June 2015), is said to have held that two Indian parties cannot agree to a foreign seat of arbitration and accordingly cannot apply foreign law to the substance of their dispute. The Madhya Pradesh High Court, however, in Sasan Power Ltd v North American Coal Corporation (Decision of 11 September 2015) has held to the contrary—that Indian parties are free to resort to foreign-seated arbitration. This article argues that the decision in Addhar has been misinterpreted, since it does not lay down a bar against Indian parties conducting an arbitration at a foreign seat or applying foreign substantive law. It further argues that the ordinary scheme of the Arbitration and Conciliation Act, as well as its interpretation in the landmark 'BALCO' judgment, have not been disturbed by the rulings in Addhar or Sasan. It finally examines the policy implications of Indian parties effectively ‘contracting out of’ the Indian legal system by opting for a foreign seat.