Types Of Arbitration Research Articles

Down the Rabbit Hole of Investment Arbitration and Ethics

This article addresses the role of arbitrators and the everlasting tension amongst personal morals and interpretive rigour. Critiques of investment law have traditionally underscored the lack of balance in power between foreign investors and host states under BITs and FTAs and have especially emphasized how investment arbitration is a mechanism that aggravates imbalances and engenders inequitable outcomes. Frequent appeals for the reform of investment arbitration resonate amongst scholars, states, and international organizations, with the appointment of arbitrators and their conduct facing intense scrutiny. Arbitrators, endowed with powers akin to those of adjudicators, demonstrate at times a concerning attitude towards the rigorous interpretation of applicable laws, often overlooking the public international law nature of BITs and FTAs and, on occasion, approaching investment disputes as though they were merely commercial arbitration cases. The conflation of the two types of arbitration has had adverse effects, resulting in dubious awards and decisions. The increasing number of so-called mega-awards exacerbates the problem, as their significance for host states is not necessarily commensurate with the rigor of the legal reasoning underpinning them. This has progressively led to an erosion of trust in investment arbitrators and numerous calls for greater accountability of arbitrators. However, one may argue that even the most rigorous interpretations of BITs and FTAs unavoidably favour the interests of foreign investors due to the inherent nature of such agreements, which prioritize the rights and protections of foreign investors over the interest and welfare of host states and their populations.

A Critical Analysis of Arbitration as an Instrument for Resolving Commercial Dispute in Nigeria

This paper is a critical analysis of arbitration as an instrument for resolving commercial dispute in Nigeria. The Nigerian courts considering the precarious situation finds itself in the dispensation of justice moreso in the resolution of commercial disputes. The works examine the concept of arbitration, overview of alternatives dispute resolutions (ADR), the legal and institutional framework for the regulation of arbitration in Nigeria, types of arbitration among others. The work underscored the prospects and future of arbitration in the areas of party autonomy, third party funding, and online arbitration, the availability of injunctions and interim reliefs within the framework of arbitration and the upsurge of arbitral institutions. The paper recommends that for arbitration to be properly harnessed and enhanced all hands must be on deck – the parties, the courts, counsel all have a role to play.

Algorithms for Managing the Redundancy of Onboard Equipment Complexes of Mobile Objects. Part 2. Paired Arbitration of Computers

The article solves the problem of operative selection of the redundant onboard equipment complex components configuration of the suitable in the current operating conditionаs in the interests of ensuring high fault tolerance of the complex, as well as achieving other operational and technical characteristics. The basis of the redundancy management system of the complex consists of configuration supervisors — as program subjects according to the number of its competitive configurations of heterogeneous and nonuniform equipment worked out in advance. The choice of the preferred configuration is proposed to be carried out by performing multi-level arbitration, which includes two phases of paired arbitration of computers and paired arbitration of configuration. It is proposed to include the means of both types of arbitration in each configuration supervisor, which ensures its self-sufficiency when participating in a competitive selection. The second part of the article is devoted to the computer’s arbitration for the implementation of redundancy management functions. The approach is applicable to a computing environment with many comparable computing devices and contains 2 phases. In the first phase, a preliminary selection of a competing pair of computers — as applicants for the implementation of redundancy management functions in them is carried out. In the break between the phases, the pair computers implement the procedures for pair arbitration of configurations given in the first part of the article. In the second phase, the final choice of the α-computer is made, in which the supervisor who won the arbitration will be implemented. In order to achieve the maximum possible centralization of selection procedures and, as a consequence, the exclusion of "bottlenecks" in terms of reliability of places, additionally proposed: the organization of secure data exchange between computers based on distributed registry technology; the procedure of paired arbitration of computers, consisting in mutual cross-validation of dominant supervisors of a pre-allocated pair by comparing preference matrices, including information parcels of arbitration objects. A methodological example that demonstrates the features of the system functioning in the conditions of computers degradation is given. The proposed approach can be used to solve the problems of reconfiguration control of heterogeneous computing facilities of technical objects on-board equipment complexes.

Algorithms for Managing the Redundancy of Onboard Equipment Complexes of Mobile Objects. Part 1. Paired Arbitration of Configurations

The article solves the task of an operational choice of the most suitable conditions for the functioning of the configuration of the components of a redundant onboard equipment in the interests at the same time as ensuring the high fault tolerance of the complex and the achievement of its other performance and technical characteristics. The basis of the redundancy management system is the program subjects in terms of the number of well-developed competitive configurations of heterogeneous and non-communicable equipment complex, called configuration supervisors. The choice of preferred configuration is proposed by performing a multi-level arbitration, which includes the comprising two phases of the pair arbitrator of the computers of the complex and the paired arbitration of configuration supervisors. To ensure the reliability of the competition in the conditions of possible collisions related to the unreliability of information parcels in a pair or with failures of arbitration modules, procedures have been introduced consisting in mutual cross-checking of information parcels between the supervisors of the pair. In case of conflicts when choosing a preference, mutual replacement of the inputs of the arbitration modules and re-evaluation of preferences is provided. The means of both types of arbitration are invited to include in each configuration supervisor, which ensures its self-sufficiency with participation in a competitive selection. The first part of the article is devoted to the paired arbitration of configuration supervisors that implements mutually crossanalysis of readiness indices and indicators of the functional efficiency of configurations combined into a pair. The brute force organized by any way allows you to identify the preferred configuration for subsequent implementation. Two options for paired arbitration of configurations of various complexity and efficiency with binary estimates of preferences (simplified and complete), as well as an arbitration option with triplex preference estimates are also proposed and analyzed. The results of the comparison of the arbitration options are presented, which is selected by the developer based on considerations of guaranteed presence or restrictions of the system design. A methodological example is given illustrating the possibilities of paired arbitration of configurations and its features of a practical nature.

A trade-based approach to resolving escalating FRAND-based disputes in the digital age

ICT-based standards can enable and enhance interoperability and compatibility and decrease transaction costs in the ICT-driven marketplace. World trade would not be prosperous today but for the rapid modern development of ICT-based industries across the globe. Nowadays, most technical standards in the ICT-based industries are covered by patents, and controversies over standard essential patents and FRAND licensing have been disrupting global ICT-based industries and corresponding trade flows. Current dispute settlement mechanisms for resolving ex-post FRAND-rate disputes generally fall into two categories: adjudication by national courts and certain types of arbitration. Yet they are neither adequate nor satisfactory. In the meantime, to a certain degree, it seems impracticable to count on the approach of patent policy clarifications by SDOs to clinch currently escalating FRAND-based disputes as well. In short, there presently seem to be no quick fixes. In contrast, international public governance may better serve the goal of progressively resolving costly FRAND-based disputes in the long run. Specifically in the context of world trade, a plurilateral SEP-related competition agreement might be relatively achievable. Meanwhile, in combination with and complementing other existing and proposed means, this agreement is likely to be an integral part of the multi-factor solution toolkit for resolving costly and disruptive FRAND-based disputes across the globe. For one thing, it could help alleviate the on-going escalating FRAND-based disputes per se; for another, such an initiative might instil new momentum into the multilateral trading system, which is struggling through a variety of institutional difficulties.

Historical stages of development of the arbitration agreement and arbitration

International commercial arbitration is one of the most important institutions of modern law, an important form of resolving disputes arising in foreign economic activity. The history of international commercial arbitration has significantly affected its current state and therefore needs detailed consideration. To study this topic, it is necessary to clearly distinguish between the types of arbitration that existed at one time or another. The article is devoted to the stages of development of international commercial arbitration and its application to resolve international commercial disputes. The article examines the provisions of legal acts that for the first time define the concept and legal status of international commercial arbitration.

Arbitration Archetypes for Enhancing Access to Justice

In the second half of the twentieth century, the use of arbitration proliferated in the United States as part of a greater alternative dispute resolution (ADR) movement, with the promise that using ADR processes would, among other things, enhance disputants’ access to justice. Arbitration offers disputing parties a process to resolve their dispute, which, at least in theory, is known for decreased cost, increased speed, party control, privacy, and finality. These characteristics generally enhance parties’ access to justice because, as compared to litigation, barriers to entry are lower, outcomes are delivered more quickly, substantive outcomes are more equitable, and parties have a greater opportunity to be heard. However, not all twenty-first-century arbitration proceedings share these characteristics. Rather, today, arbitration comes in many forms and can be administered by different forums and procedural rules with a great variation in how cheap, how fast, and how procedurally and substantively fair the process really is. Whether a particular form of arbitration enhances access to justice depends greatly on the characteristics of the process in a particular forum or industry. This Article offers a simple framework to determine which types of arbitration truly enhance access to justice and which types do not. The Article also aims to identify a few “arbitration archetypes” that are more likely to support the claim that arbitration enhances parties’ access to justice.

Implication of International Instruments in ADR Process; an Experience of Nepal

Conciliation, mediation and arbitration are major approaches of Alternative Dispute Resolution (ADR) process. In comparison to arbitration, conciliation and mediation are less binding as the award of arbitration is final if there is no appellate clause. There are different types of arbitration which are domestic and foreign arbitration, Ad-hoc arbitration, institutional arbitration, bi-party and multiparty arbitration etc. UNCITRAL Model Law of Arbitration, 1985, UNCITRAL Arbitration Rules, 1976, International Chambers of Commerce Rules of Arbitration, 1998, International Center for Settlement of Investment Dispute Rules of Procedure for Arbitration Proceeding, 1984, Arbitration Rules of London Court of International Arbitration, 2014, and the Australian Center for International Center for Commercial Arbitration Rules, 2016 are major instruments of international arbitration. Arbitration Act, 1999 (2055 BS) and Arbitration (Court Procedure) Rules, 2002 (2059 BS) are the domestic instruments for arbitration for Nepal. Parties of the agreement can apply any foreign instruments of arbitration as well. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, Geneva Protocol on Arbitration Clause, 1923, Geneva Convention on the Execution of Foreign Arbitral Awards, 1927, Inter-Arab Convention on the Enforcement of Judgment and Awards, 1992 and UNCITRAL Model Law, 1985 clearly mentioned about the applicability of foreign arbitral award. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 was established as a result of dissatisfaction with the Geneva Protocol on Arbitration Clauses of 1923 and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927. Under Nepalese legislation, a party should submit an application to the High Court along with the original or certified copy of the arbitrator's award, original or certified copy of the agreement, and official translation in Nepali language including any treaty if so within 90 days of award. If all conditions are fulfilled, High Court forwards the award to the District court for its enforcement if the domestic law permits. Although, there are the greater roles of ADR including arbitration, it is not a panacea to solve the disputes. If effectively applied, it is the best and participatory method of dispute resolution system.

Contractual Joint Ventures in International Investment Arbitration

Contractual joint ventures, sometimes also called as consortiums, where several participants, without creating a new entity, unite their personal efforts and material resources with a view of achieving a certain common goal, remain a popular organizational form of large-scale international investment projects all over the World. In view of significant amount of their investments in these projects, any prospective foreign participants may wish to consider whether structuring their activities through a contractual joint venture would allow them to effectively protect their economic interests against possible adverse actions of a host State. Or, they should rather create a joint venture in the form of a partnership or a corporation under the laws of the project’s host State or under the laws of another country? To answer these questions, the article analyses the status of contractual joint ventures and their participants in international investment arbitration and compares it with the status of partnership and corporate joint ventures and their participants. The analysis is primarily carried out on the example of contractual joint ventures under Swiss law, because this law has been frequently chosen by participants of international investment projects as applicable law in a wide variety of international projects. Although the absence of legal personality of contractual joint ventures prevents them from acting as a claimant in both ICSID and non-ICSID investment arbitration, it does not by itself preclude individual claims of their participants in both types of arbitration. Furthermore, the comparison between possible amounts of participants’ individual claims reveals that under similar circumstances foreign investors in contractual joint ventures could potentially recover the same amount of damages as those in partnership and corporate joint ventures. On the basis of this comparison, the article argues that the use of contractual joint ventures would not put foreign investors in a disadvantageous position as concerns the possibility to protect their economic interests against an adverse action of a host State as compared with the participants in other two types of joint ventures.

The Nature of Arbitration Agreement

Abstract The base and the root cause of the institution of arbitration in the international and domestic arenas stemmed from the existence of vacuum in the normal and public procedure in the formal existence that led to slow investigation and spending of costs for the state and the two sides of the argument. Thus, in most countries in the world, detailed regulations were approved regarding various types of arbitration and its conditions and effects. In the domestic arena, arbitration rules with a focus on civil law are considered to be among non-formal contracts and in the international arena, Iranian Law, in line with International Arbitration Law, has considered the arbitration contract to be among formal contracts and emphasizes the necessity of the written arbitration contract; furthermore, in domestic regulations, arbitration agreement is considered as subject to the main contract and in Iranian Law on International Arbitration, autonomy of the arbitration contract from the main contract has been recognized

Williams & Kawharu on Arbitration by David Williams QC and Amokura Kawharu with contributing authors Daniel Kalderimis, Anna Kirk, and Campbell Walker

Williams & Kawharu on Arbitration, by David Williams QC and Amokura Kawharu with contributing authors Daniel Kalderimis, Anna Kirk and Campbell Walker. 1, (Published by LexisNexis, 2011), ISBN 9781877511547, 1246 pages Williams & Kawharu on Arbitration is the first comprehensive exposition of the law and practice of domestic and international arbitration written from a New Zealand perspective. In the authors’ own words, the ‘work aspires to provide comprehensive coverage of domestic arbitration in New Zealand, as well as addressing international commercial arbitration and investment treaty arbitration, both of which have increasing relevance for New Zealand and, refreshingly, ‘attempts to emphasise the practical aspects of arbitration where appropriate’.2 Not only does the work provide the most detailed analysis of the New Zealand Arbitration Act 1996 (as amended in 2007) (the ‘NZ Act’) and arbitral practice in New Zealand yet written, the authors also draw on a wide range of international jurisprudence and their own extensive experience of international commercial and investment treaty arbitration to provide an invaluable resource for arbitration lawyers, academics, arbitrators, judges and students of all nationalities. Williams & Kawharu on Arbitration is split into four main parts and thirty chapters. The first two parts are heavily focussed on the NZ Act and contain a detailed analysis of arbitration law in New Zealand. Part 3 is focussed on an exploration of arbitral procedural rules that are commonly chosen by the parties in international commercial arbitrations, whilst Part 4 introduces the legal framework and key legal concepts of investment treaty arbitration. The work comprehensively explores familiar themes, such as: the nature, source and types of arbitration; the role of the court in arbitration proceedings; the arbitration agreement; choice of and applicable law considerations; the composition of the tribunal; the arbitrators’ jurisdiction; the conduct of the proceedings; interim measures; confidentiality; making, correcting, recognizing, enforcing and setting aside and appealing awards; and issues of costs. The authors’ approach to each topic, which is sustained throughout the book, becomes immediately apparent in Part …

UNCITRAL Arbitration Rules 2010: A Review

The United Nations Commission on International Trade
 Law Arbitration Rules, 1976 has been in vogue for more
 than a quarter century. Its success can be gauged from the
 range of its use in different types of arbitration. After
 more than thirty years of use, the UNCITRAL Arbitration
 Rules, 1976 were revised in 2010. In revising the rules, the
 UNCITRAL has followed a conservative approach but has
 taken into consideration the demands and developments
 of international arbitration. This paper analyses the
 revisions made to the 2010 rules.

Determining a “Reasonable” Implementation Timeline for Developing Countries in WTO Disputes: An Appraisal of Special Treatment Commitments in DSU Article 21.3 (c) Arbitrations

Abstract The Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) prescribes three different types of arbitration which are ancillary to the Panel and Appellate Body functions of the WTO dispute settlement system (DSS). These are the arbitrations for determining the implementation timeline under Article 21.3 (c) of the DSU and two other types of arbitration under Articles 21.5 and 22.6. This article focuses on some specific approaches and functions of Article 21.3 (c) arbitrations and examines the procedural actions which are related to determining a suitable implementation time for developing countries. It investigates the consistency and coherence of practice in selected arbitral awards in which developing countries claimed “particular attention” either as complainant or as implementing parties. This article points out that the lack of specific guidelines in the DSU is the substantial cause for arbitrators’ noncompliance with Article 21.2 provisions in Article 21.3 (c) arbitrations, which questions the procedural fairness of such arbitrations. This situation, amongst others, reiterates the urgent necessity to amend the relevant DSU rules.

Resolution of commercial disputes through arbitration as a contributor to improvement of business environment in Serbia

The paper presents a brief overview of selected arbitration-related issues (legal framework for arbitration, different types of arbitration, arbitration agreement, arbitrators, seat of arbitration, law applicable to the arbitration proceedings and merits, arbitration award, costs), in light of contemporary arbitration trends and practices and with special emphasis on Serbian legislation and existing arbitral practice in Serbia. Furthermore, it provides readers with drafting considerations when agreeing to arbitration, and comparative analyses of advantages and disadvantages of arbitration, as dispute resolution mechanism which can, in authors' view, significantly contribute to reduction of transaction costs and overall improvement of business environment in Serbia.

교수의 지도유형이 교양 댄스스포츠 수업 참가자의 재미와 수업몰입에 미치는 영향

This study is aimed at investigating and analyzing relations between professors` teaching types and interest and immersion of participants in dance sports lessons, out of college liberal dance lessons which men and women can enjoy together. A total of 407 persons took part in the study. To analyze data, frequency analysis, exploratory factor analysis, reliability analysis, correlation analysis and multiple regression analysis were conducted. The results are as follows: First, the analysis of the degree of relations between professors` types of teaching and participants` interest and immersion showed that there were static relations between variables. Second, a study on the effect of professors` teaching types on interest in the lesson showed that a type of motivation affected physical and mental health, a type of leading study affected cultivation of sociability and a type of order affected experience of a sense of accomplishment. Third, a study on the effect of professors` teaching types on immersion showed that types of arbitration, motivation and leading study affected recognition immersion and that, on the other hand, types of arbitration, order and leading study affected behavior immersion. Fourth, a study on the effect of interest in lessons on immersion showed that all effects of physical and mental health, cultivation of sociability and experience of a sense of accomplishment affected both recognition immersion and behavior immersion.

Party Control in International Arbitration

PARTIES TO an international arbitration frequently express their concern about the lack of party control in arbitration proceedings. Parties initially choose arbitration over litigation in state courts. Parties determine the applicable law and arbitration rules, appoint co-arbitrators and participate in the selection of a chairman. Nevertheless, parties frequently feel that arbitrations take on almost a Dickensian life of their own and escape their control. This impression is reinforced when one hears arbitrators insist that they should control the arbitration to the exclusion of counsel, who they view as being out of touch with their clients.1 But the debate over who should control arbitral proceedings in the abstract is not the real issue. Party control depends first on the choice of the relevant arbitration rules and second on the stage in the arbitral proceedings. The dual issues of the choice of arbitration rules and the staged shift in control is important in dealing with the real issue regarding control, which is not who in the abstract should control arbitral proceedings, but how a party can best ensure that it does influence the proceedings at these various stages. This article seeks to deal with these two aspects within the following overall framework. Parties usually have only one chance to influence the choice of the arbitration rules — when they are agreeing to arbitrate in the first place. With respect to party control after this basic decision has been made, it may be helpful to provide a time line based on a typical arbitration under the ICC Rules2 which can readily be adapted to other types of arbitration as well. For our purposes, an ICC arbitration could be represented on a time line as shown in Figure 1. During the first stage , parties are negotiating and agreeing upon the …

Consolidation Under the English Arbitration Act 1996: A View from the Netherlands

Section 35 of the Arbitration Act 1996 provides that the parties may agree that the arbitral proceedings shall be consolidated with other arbitration proceedings, or that concurrent hearings shall be held. In the absence of an explicit agreement, the tribunal shall not have the power to consolidate or hold concurrent hearings. In this note, an attempt will be made to comment on this provision from an international perspective, in particular from a Dutch angle. The reason for this is that there is relevant experience in the Netherlands. Since 1986, the Netherlands Arbitration Act1 has provided that parties to arbitral proceedings pending in the Netherlands may request the President of the District Court in Amsterdam to consolidate these proceedings (in full or partially) with other arbitral proceedings commenced before another arbitral tribunal in the Netherlands. Parties may by agreement exclude this possibility. The President is also given the power to appoint the arbitrator(s) and determine the applicable procedural rules, if the parties are unable to agree on these issues.2 The need for consolidation is often said to be most acute in the fields of maritime and construction arbitration. For the Netherlands, the problem is most keenly felt in the construction industry, where submitting disputes to arbitration is standard practice. In addition to the Netherlands Arbitration Institute which deals with all types of arbitration, a number of specialized arbitration institutes exist which exclusively administer construction arbitrations. Separate institutes have been created to deal with the various relationships encountered in a typical construction project, such as the relationship with the architect, the technical adviser, etc.3 It is largely as a result of lobbying by the construction industry that the consolidation provision was …