UNCITRAL Arbitration Research Articles

The US-China BIT: Enhancing Dispute Settlement Mechanism

This article critically examines the inadequacies of the International Centre for Settlement of Investment Disputes (ICSID) and the intricacies surrounding the divergent strategies employed by the United States and China in managing investor-state disputes. Given the lack of an explicit dispute resolution mechanism in the envisioned US-China Bilateral Investment Treaty (BIT), the paper advocates for a comprehensive strategy for shaping future agreements. It proposes integrating UNCITRAL Arbitration Rules as an alternative to ICSID; the inclusion of ad hoc Arbitration Panels is recommended for tailored resolutions; and the incorporation of alternative dispute resolution (ADR) mechanisms as pre-arbitration procedures is emphasized. This multifaceted strategy aims to address the deficiencies of a singular arbitration mechanism and foster a more adaptable and effective dispute resolution framework tailored to the specific needs of China and the United States, providing a balanced means of addressing the complexities inherent in investor-state disputes.

Artificial Intelligence and Foreign Investment Law Arbitration: an Analysis of Regulatory Framework Implications

Abstract This paper proposes a structured, tiered framework through a UNCITRAL Model Law to gradually integrate artificial intelligence (AI) into foreign investment law arbitration in an ethical and effective manner. It also explores the critical role arbitration institutions can play in facilitating AI implementation. It details how AI can assist arbitrators by searching vast datasets, automating routine tasks, and enhancing decision-making through analysis of previous cases. Current AI regulations in regions like the EU, UK, and Canada fall short in addressing the complexities of cross-border arbitration and ensuring interoperability. By emphasising the distinct contributions of the proposed UNCITRAL Model Law and arbitration institutions, the paper highlights a multi-faceted strategy to overcome challenges posed by outdated international conventions, inconsistencies in bilateral investment treaties, and the lack of comprehensive guidance. This approach aims to refine the integration of AI in arbitration processes, enhancing efficiency, fairness, and the legitimacy of the arbitration system.

Do the Rules of Europe’s Leading Institutional Arbitration Courts and the UNCITRAL Arbitration Rules Need to Be Revised? Assessment from the Perspective of 2023

While some issues (e.g. the principles of service, the expedited procedure for resolving cases and the admissibility of securing a claim before initiating proceedings) are regulated in a manner that satisfies the requirements of 2023, other issues (e.g. the rules of holding remote hearings or the consequences of failing to meet deadlines in arbitration, in particular the deadlines for issuing an award) would require a numer of modifications and improvements. This suggests that a postulate should be presented for a broader discussion within the community – both in Poland and abroad – on the shape of the regulations in this area that would be the most comfortable for the parties to the proceedings, the arbitral tribunals and the arbitral institutions, while respecting the basic (universal) arbitration rules.

Organized Corporate Crimes using UNCITRAL Arbitration Framework Development for EPC Disclosure concerning Epistemic Corruption and Pharmaceutical Fraud of Off-label Medicines as Health Regulation and Policy

Purpose: Corporate Governance is a conceptual framework of business designs intended to illustrate the various activities of a company towards fulfilling its profit goals as private stakeholder and contributing to public interests for social obligation of sustainable development. Disclosure of corporate social responsibility is the central mechanism of corporate governance.
 Methodology: Based on stakeholder theory, corporate governance strongly influences corporate social responsibility disclosure to enhance the relationship of stakeholders and its business community.
 Findings: Tax aggressiveness is utilized by board director and its members to lessen tax contribution which is contrary to the government sector goals of maximizing tax impositions for public welfare and safety. Unlawful behavior on tax aggressiveness is known as tax evasion while tax avoidance is not a violation and serves as a loophole to the taxation system, although corporate fraud is apparent in off-label medicines. UNCITRAL model law is a legal arbitration concept of making “commercial” expand to other comparable jurisdiction of international trade. The European Patent Commission is the legal authority that delineates medical policies from patented products.
 Unique Contribution to Theory, Practice and Policy: This paper aims to develop arbitration framework based on stakeholder theory of corporate governance to separate tax evasion from tax avoidance as organized crime sourcing treatment of policies and engineer tax planning to divide intellectual property of product design with corporate fraud concerning off-label medicines. Therefore, tax evasion and corporate fraud are business crimes in pharmaceutical industries needed to be clearly managed by institutional healthcare companies for promoting economic success.

The Expedited Arbitration: New Direction in UNCITRAL Rules 2021(Comparative Study)

The idea of expedited arbitration is manifested in the conduct of the arbitration process in a way that takes into account simplicity and speed in the procedural aspects of the arbitration process to reach a final arbitral award in an effective way that contributes to reducing the duration and cost. This study results in many problems, the most important of which are: the potential threat of the principle of the authority of the will of the parties to resort to expedited arbitration, the conflict between the arbitration agreement and the rules of expedited arbitration, and the lack of certainty about the feasibility of shortening time frames in reducing expenses and expenses. This study came to research expedited arbitration as an innovative route adopted by the UNCITRAL Arbitration Rules 2021, to try to clarify the facts about this route and its effectiveness. The study concluded that the approach adopted by the UNCITRAL Rules to expedited arbitration constitutes a true core of this exceptional path, and has been unique from any institutional rules that included provisions for expedited arbitration by enshrining the principle of parties autonomy. One of the most important recommendations is to examine the possibility of adopting expedited arbitration rules in national legislation in view of the nature and value of disputes considered in the framework of national arbitration, which are all simple and uncomplicated disputes as are disputes in the international contex

Legal prerequisites for consideration and settlement of disputes in international commercial arbitration

The article examines the problematic issues of the grounds for litigation in international commercial arbitration. The urgency of this topic is due to the need for a lack of clear definition of the prerequisites for resolving disputes, as well as the procedure for their use in the practice of international commercial arbitration. In addition, the problematic aspects of dispute resolution in international commercial arbitration are analyzed and procedural measures for their resolution are identified.
 To achieve this goal, the material preconditions for dispute resolution in the ICA were studied and the procedure for resolving disputes was determined. The preconditions for transferring a dispute to international commercial arbitration, which are the advantages of arbitration compared to state courts, are, first of all, that it provides a more acceptable, accessible and simpler procedure for resolving disputes compared to state courts. In other words, it is a procedure established by the parties to the dispute, which in general can be adequate and adapted to make agreed decisions. Even when the parties turn to a permanent commercial arbitration, which has its own rules of procedure, they can provide for arbitration. The UNCITRAL Arbitration Rules of 2010 stipulate that when the parties decide to submit disputes to arbitration in accordance with these Rules, they shall be considered in accordance with these Rules.
 The study identified a number of major risks and difficulties faced by the party in applying to a state court: ignorance of the procedure required for a foreign state court; the obligation to conduct the proceedings in the language of the court’s location; the existence of several instances and the procedural formalism that occurs when applying to the general courts; judges do not always have the appropriate competence to deal with disputes arising from foreign trade; gathering evidence and evaluating it on the basis of the national legal system.
 The study concluded that the benefits of international commercial arbitration, in the presence of prerequisites for litigation, give much better benefits for litigation, which forms its authority among the relevant categories of legal entities and individual entrepreneurs.

Transparency in ISDS: A Study Based on Multi-party Agreements

The virtues of transparency and confidentiality in international judicial processes are often debated, including in relation to investor-State dispute settlement (ISDS). The extent of transparency in an ISDS proceeding may vary based on the applicable arbitration rules and the text of the international investment treaties under which the dispute arises. In this context, this article studies the practice of States reflected in select multiparty agreements. The sample of agreements considered, by virtue of the large number of participating countries, significance of trade and investment flows between participants, or both, may be considered representative of global trends or the lack thereof. The article also discusses how the transparency and confidentiality provisions in such agreements interact with the applicable arbitration rules and the net effect on transparency in ISDS. ISDS, transparency, UNCITRAL Arbitration Rules, public access to documents, open hearings, third parties, publication of orders, confidentiality.

The Higher Regional Court of Frankfurt am Main Is the First European Court to Declare the Achmea Case a Landmark Decision with Significance for All Intra-EU BITS

In February 2021, the Higher Regional Court of Frankfurt am Main (Oberlandesgericht – “olg”), rendered a decision in the case between the Republic of Croatia (“Croatia”) as the applicant, and an Austrian bank incorporated as a joint stock company under Austrian law and a Croatian bank incorporated as a joint stock company under the laws of Croatia having the Austrian bank as its sole shareholder as the Respondents (“Respondents”). This decision concerns the incompatibility of an arbitration clause contained in the Agreement between the Republic of Austria and Croatia on the Promotion and Protection of Investments (“Austria-Croatia bit”)2 with EU law. Croatia successfully challenged the admissibility of an uncitral arbitration based on Article 9(2)(b) of the Austria- Croatia bit, initiated by the Respondents, by virtue of an application under Section 1032(2) of the German Code of Civil Procedure (Zivilprozessordnung – “zpo”). Croatia argued that Article 9(2)(b) of the Austria- Croatia bit was incompatible with EU law.

Prima Facie Decisions on Jurisdiction under the UNCITRAL Arbitration Rules:The Experience of the Permanent Court of Arbitration

Prima Facie Decisions on Jurisdiction under the UNCITRAL Arbitration Rules:The Experience of the Permanent Court of Arbitration

Hukum International Sebagai Lex Causae oleh Badan Arbitrase Komersial Internasional

This article discusses whether international law may be applied as lex causae by arbitral body. The international instrument used as comparative study are the Model Arbitration Law 1985, UNCITRAL Arbitration RUles, the ICC Rules of Arbitration the ICSID Convention and the Indonesian National Law on Arbitration. The article suggest that although international law seems inappropriate to deal with commercial matters, in certain circumstances, it is possible.

UNCITRAL Model Law & Arbitration Rules: The Arbitration Act 2005 (Amended 2011 & 2018) and the AIAC Arbitration Rules 2018, by Sundra Rajoo

The UNCITRAL Model Law on International Commercial Arbitration and the UNCITRAL Arbitration Rules have been key players in the establishment of a harmonized arbitration system worldwide. As Alexis Mourre enthusiastically articulates in the Foreword of this book: ‘Of course, the law and practice of international arbitration would not be what it is without the Model Law!’ Today, legislation based on the UNCITRAL Model Law has been adopted in 83 States, in a total of 116 jurisdictions.1 Twenty-six arbitration centres have based their Arbitration Rules on, or have been inspired by, the UNCITRAL Arbitration Rules, 34 arbitration centres administer arbitral proceedings under the UNCITRAL Arbitration Rules or provide some administrative services under the said Rules, and 55 arbitration centres act as an appointing authority under these Rules.2 Against this background, Sundra Rajoo wrote the UNCITRAL Model Law & Arbitration Rules: The Arbitration Act 2005 (Amended 2011 & 2018) and...

Gramercy Funds Management LLC v. The Republic of Peru An empirical study of interim measures under 2013 UNCITRAL Arbitration Rules

Gramercy Funds Management LLC v. The Republic of Peru An empirical study of interim measures under 2013 UNCITRAL Arbitration Rules

Environmental Counterclaims in Investment Arbitration

This article explores the possibility of environmental counterclaims in the context of investment arbitration and arbitral rules, focusing in particular on the UNCITRAL Arbitration Rules and ICSID Arbitration Rules. States have only rarely raised counterclaims against investors in investment arbitration. Yet, in disputes raising environmental issues, counterclaims could prove useful to States to obtain compensation for environmental damage caused by an investor’s economic activities. This article examines first the procedural and legal requirements for raising counterclaims in investment arbitration, including the provisions set out by the arbitral rules and relevant case law. It then proceeds to consider recent cases in which States have raised environmental counterclaims with varying degrees of success. Finally, the article considers the conclusions to be drawn for policy making and investment treaty negotiations.

Qualifications for Party Representatives and Arbitrators in Nigerian Arbitration: Shell v Federal Inland Revenue Service

AbstractNigeria's Court of Appeal held in Shell v Federal Inland Revenue Service (Shell v FIRS) that only Nigerian enrolled legal practitioners can sign processes for arbitration proceedings in Nigeria. Foreign qualified legal practitioners (FQLP) not enrolled in Nigeria are excluded. Arguably, this limitation extends to the conduct of the parties’ cases and excludes FQLP from appointment as arbitrators where the arbitration agreement specifies that arbitrators be legal practitioners. Shell v FIRS however, contrasts with Stabilini Visinoni v Mallinson, in which the same Court of Appeal had emphasized the flexibility of the arbitral process (which typifies judicial policy in any arbitration-friendly jurisdiction), particularly recognizing that arbitration practice is open to lawyers and non-lawyers alike. Consequently, this note recommends that Nigeria's Arbitration Act be amended to allow for representation by “persons” of the parties’ choice, mirroring the IBA Guidelines on Party Representation in International Arbitration 2013 and article 5 of the UNCITRAL Arbitration Rules 2010.

Do the SALINI Criteria apply to the Definition of an Investment provided in Annex 1 of the 2006 and 2016 SADC Protocol on Finance and Investment? An Assessment

An investment is the subject matter of an investor-state dispute. Therefore there can be no such dispute if there is no investment to which the dispute relates. The challenge in this regard lies in that there is no uniform definition of an investment in international economic law, and with regard to investor-state disputes in particular. Bilateral Treaty Agreements (BITs), Treaties with Investment Provisions (TIPs), investment contracts and legislation provide different definitions of an investment. However, these definitions are not always final or sufficient, since there are different methods of assessing the existence of an investment, depending on the applicable arbitration rules. Arbitration tribunals formed in terms of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States of 1965 (ICSID Convention) follow a two-step process, which starts with a consideration of the definition of an investment in terms of the underlying regulatory instrument, followed by a consideration of the provisions of Article 25(1) of the ICSID Convention. Salini Construttori S.P.A and Italstrade S.P.A v Kingdom of Morocco is a landmark ICSID case that proposed the criteria that an investment must meet. On the other hand, investor-state arbitrations based on the UNCITRAL Rules Arbitration or other non-ICSID rules consider the definition of an investment provided in a regulatory instrument only. However, the tribunal in Romak S.A (Switzerland) v Republic of Uzbekistan held that the Salini criteria are applicable to UNCITRAL arbitration, and by implication, other non-CSID arbitrations. The 2006 Annex 1 of the SADC Protocol on Finance and Investments (SADC FIP) defines an investment as any asset group, while the 2016 Annex 1 defines an investment as an incorporated enterprise. Furthermore, the 2006 Annex 1 refers disputes to ICSID or UNCITRAL arbitration, while the 2016 Annex 1 refers disputes to the courts of host states. This article explores the responses of selected tribunals to the Salini criteria. It seeks to determine whether the Salini criteria can be applied to the 2006 and/or 2016 Annex 1, and if so, what the implications thereof are to the scope of investments that can be covered by these instruments.

Environmental Counterclaims in Investment Arbitration

This article explores the possibility of environmental counterclaims in the context of investment arbitration and arbitral rules, focusing in particular on the UNCITRAL Arbitration Rules and ICSID Arbitration Rules. States have only rarely raised counterclaims against investors in investment arbitration. Yet, in disputes raising environmental issues, counterclaims could prove useful to States to obtain compensation for environmental damage caused by an investor’s economic activities. This article examines first the procedural and legal requirements for raising counterclaims in investment arbitration, including the provisions set out by the arbitral rules and relevant case law. It then proceeds to consider recent cases in which States have raised environmental counterclaims with varying degrees of success. Finally, the article considers the conclusions to be drawn for policy making and investment treaty negotiations.

Michael Ballantine and Lisa Ballantine v. The Dominican Republic, Case No. 2016-17, The UNCITRAL Arbitration Rules, Final Award, 3 September 2019

Michael Ballantine and Lisa Ballantine v. The Dominican Republic, Case No. 2016-17, The UNCITRAL Arbitration Rules, Final Award, 3 September 2019

Michael Ballantine and Lisa Ballantine v. The Dominican Republic, Case No. 2016-17, The UNCITRAL Arbitration Rules, Partial Dissent of Prof. Vinuesa on Costs, 3 September 2019

Michael Ballantine and Lisa Ballantine v. The Dominican Republic, Case No. 2016-17, The UNCITRAL Arbitration Rules, Partial Dissent of Prof. Vinuesa on Costs, 3 September 2019

Michael Ballantine and Lisa Ballantine v. The Dominican Republic, Case No. 2016-17, The UNCITRAL Arbitration Rules, Partial Dissent of Ms Cheek on Jurisdiction, 3 September 2019

Michael Ballantine and Lisa Ballantine v. The Dominican Republic, Case No. 2016-17, The UNCITRAL Arbitration Rules, Partial Dissent of Ms Cheek on Jurisdiction, 3 September 2019

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.