Validity Of Arbitration Agreement Research Articles

Awarding costs where no arbitral jurisdiction on the merits: the making and enforcement of negative cost awards

Abstract Arbitral tribunals routinely award costs when they lack jurisdiction on the merits of a dispute. However, most of the identified awards—labelled here as ‘negative cost awards’—fail to adequately explain the source of the tribunals’ authority to award costs, either by omitting the reasoning altogether or by merely relying on the arbitration rules. If the arbitration agreement is found to be invalid or non-existent, it cannot empower a tribunal to award costs, and the arbitration rules ordinarily should not apply if the parties never agreed to them in a valid arbitration agreement. This notwithstanding, tribunals usually have a valid basis to award costs. This authority can be found in the arbitration agreement on the issue of costs, the competence–competence principle or, one way or another, national arbitration laws. Negative cost awards generally should be enforceable both under the New York Convention and the ICSID Convention, but the lack of an express finding of the arbitration agreement or another source of the tribunals’ authority to award costs may jeopardize the enforceability of such awards. Tribunals can avoid this problem by expressly explaining the basis of their authority to adjudicate costs in their awards.

Arbitration in trust disputes under Israeli law

Abstract This article first reviews key issues in Israeli arbitration law, and then discusses the Israeli trust and its creation modalities. It then focuses on the validity of arbitration agreements with respect to trust disputes under Israeli law by reviewing the relevant case law. In this context, the article distinguishes between commercial trusts set up by contract, charitable trusts and trusts set up as estate planning instruments. The article goes on to highlight the difficulty of imposing arbitration on beneficiaries of a trust, and finally concludes.

THE NATIONAL RECOGNITION OF THE INTERNATIONAL ARBITRATION IN THE INTERNATIONAL TRADE DISPUTES: A COMPARATIVE STUDY BETWEEN THE FRENCH AND JORDANIAN LAWS

The article treats the recourse of the parties to disputes in international trade to arbitration, as they can choose arbitrators specialized in the subject matter of the dispute, far from the conflict of national laws and the dilemmas of attribution rules in private international law. This article employed a qualitative analysis and research approach. The research found that the increase in recourse has raised legal questions regarding the settlement of disputes outside the borders of the state, especially since the association of the international contracts with economic values protected by national laws creates obstacles to subjecting these disputes to the international arbitration. How have the national laws dealt with the international arbitration, affected it and were affected by it? The research responded to these questions by consulting the French and Jordanian law. As a result, the arbitration takes the international character of the presence of foreign elements in the relationship or because of the subject of the dispute to be resolved, and this is the legal criterion. A valid arbitration agreement produces its own law independently of the mechanisms of national law. National legislation should recognize an international arbitration decision as long as the arbitration decision is validly rendered in accordance with the law governing the arbitration process. French law recognizes the international arbitration decisions, while Jordanian legislation does not recognize international arbitration decisions through direct provisions, but rather recognizes the decisions because of its commitment to implement the 1958 New York Convention.

An Empirical Study on Recognition and Enforcement of Foreign, Hong Kong, Macau, and Taiwan Arbitral Awards in Mainland China

In this report we analysed publicly available cases decided by courts of Mainland China (‘PRC courts’) from 2001 to 2021 in which the court refused or rejected party’s application for recognition and enforcement of foreign (including Hong Kong, Macau, and Taiwan) arbitral awards, totalling thirty-seven cases. Here we provide factual summary for each case and conducted statistics with respect to their arbitration-related characteristics and PRC court’s ground of decision. With this report, one can see that PRC courts are extremely cautious in refusing or rejecting recognition and enforcement of foreign arbitral awards. Lack of valid arbitration agreement, and violation of arbitration agreement/arbitration rules/law of the seat, are the two major causes that led to the PRC Courts’ refusal of recognition and enforcement. However, one should note that non-compliance of national laws in Mainland China may undermine recognition and enforcement of foreign arbitral awards. PRC, Mainland China, foreign arbitral awards, recognition, enforcement, refusal, rejection, New York Convention, statistics

A Glance at the Legal Status of Non-Signatories in International Commercial Arbitration

Arbitration has been recognized as one of the most popular ADRs in commercial disputes. Theoretically, arbitration is based on a valid arbitration agreement and only the parties to the agreement are forced to obey the award. However, in legal practice, it is not uncommon for arbitral awards to be enforced against non-signatories. This paper introduces some major legal basis of this situation, including the traditional principles such as agency relationship and other controversial principles, among which “the group of companies” is a typical principle. At the same time, the application of these theories is also discussed. The principle of “group of companies” is considered as a pioneering method specially created for arbitration.

Validity of Arbitration Agreements in Turkish Law and Asymmetric and Pathological Arbitration Clauses

Çok eski tarihlerden günümüze kadar varlığını koruyan tahkim, devlet yargısına alternatif bir çözüm yoludur. Asıl olan egemenin bünyesinde yargı erkinin bulunmasıdır. Yargı devletin tekel niteliğinde bir faaliyettir. Ancak bazı uyuşmazlıkların devlet yargısında çözümlenmesi yerine; özel hakem kurulu tarafından karara bağlanması da istenebilir. Hakem veya hakem kurulunun kesin ve bağlayıcı bir karar taraflarca istenmiş ise, tahkim kavramı ortaya çıkar. Bu durumda asıl olan devlet yargısıdır. Ancak istisnai olarak taraflar tahkim yargısını seçebilirler. Bu yargılama, devlet yargılaması olmadığı için, her ne kadar taraflara bir esneklik tanısa da, bazı şartlara tabidir. Tahkim sözleşmesinin, yazılı şekilde olması, belirli veya belirlenebilir bir konu üzerine olması ve tahkim iradesinin açık ve kesin olması gerekir. Tahkim iradesinin açık ve kesin olması ifadesi üzerinde durulmalıdır. Bu kavram uygulamada sorunların doğmasına neden olabilmektedir. Örneğin, asimetrik ve patolojik tahkim kayıtları taraf iradesinin açık ve kesin olmadığı gerekçesi ile geçersiz kabul edilmektedir. Bu durum taraf iradesinin yorumlanması, sözleşmenin ayakta tutulması gibi temel ilkeler ile çelişmektedir. Bu sebeple bu çalışmamızda, asimetrik ve patolojik tahkim şartlarının geçerliliği incelenmektedir. İlk olarak, tahkim sözleşmesinin özellikleri açıklanmaktadır. Ardından asimetrik ve patolojik tahkim kayıtlarının ne olduğu ve çeşitleri ele alınmaktadır. Bu çalışma, kümülatif olarak asimetrik ve patolojik kayıtların geçerli sayılıp sayılmayacağı sorunu üzerine durulmaktadır.

Party Impecuniosity and International Arbitration: The Interplay between Failure to Pay the Advance Costs and Validity of Arbitration Agreement in International Arbitration

The costs in international arbitration might be burdensome compared to the costs in litigation. The right to legal aid applies to almost none of the international arbitration proceedings. When an impecunious party fails to pay the advance on costs, it is very likely that the arbitrator(s) will suspend its work or even that may lead the relevant claims be considered as withdrawn. The problem emerges with the impecunious party which might be left without an arbitral forum and become deprived of its right to “access to justice” under Article 6 of the ECHR. The aim of this paper is to analyze how the balance between binding nature of arbitration agreement and impecunious party’s right to “access to justice” should be maintained in case of party impecuniosity in international arbitration. As a result of this analysis, it is worthwhile noting that mere proof of financial incapacity of a party failing to pay the costs of arbitration should not be sufficient to set aside an arbitration agreement in an international context. Exceptionally, the courts may allow continuation of court proceedings if the challenging party submits convincing evidence that the counterparty’s actions or behaviors have caused or largely contributed to its financial incapacity. The standard of proof to establish such link should be high, at least higher than prima facie standard exercised in review of enforceability of an arbitration agreement. The paper finally reviews alternative remedies that may promote access to arbitration.

Arbitration Agreement and its Construction: An Analytical Study

The primary objective of this paper is to analyze how arbitration has evolved as an alternative to dispute resolution apart from regular and cumbersome court proceedings. The researcher has further dealt with the relevance of an arbitration clause in the contract. How one need to be cautious while drafting an arbitration agreement. In this paper researcher has extensively discussed the essential elements of an arbitration agreement and when an agreement will be considered to satisfy the provisions lay down under section 7 of the Arbitration Act, 1996. The researcher has also traced down the trend followed in India while interpreting the existence of valid arbitration agreement. The relevance of words may and shall use in the agreement and what impact it has on the validity of the contract. In this paper researcher has confined her discussion to the importance drafting arbitration agreement in Indian context and has not extended her research to other jurisdictions.

Chronology of Practice: Chinese Private International Law in 2018

This paper contains materials reflecting the practice of Chinese private international law in 2018. First, the statistics of the foreign-related civil or commercial cases decided by Chinese courts is extracted from the Report on the Work of the Supreme People’s Court (SPC) in 2018. Second, the SPC judicial interpretation concerning the enforcement of arbitral awards is translated, and the interpretation reflects a pro-arbitration tendency in Chinese courts. Third, six typical cases, which involve the validity of a choice of court clause under the transfer of contract, the conflict of laws issues regarding personal injury on the high seas, visitation rights and uncontested divorces, as well as the recognition of foreign judgments, are selected. Fourth, the paper introduces a case embodying the “one-stop” international commercial dispute resolution mechanism in Chinese courts. Finally, the paper also covers six representative decisions regarding the parties’ status, the presumption of the parties’ intention as to choice of law, and the validity of arbitration agreements.

TÜRK HUKUKUNDA TAHKİME ELVERİŞLİLİK KAVRAMI VE TAŞINMAZ AYNINA İLİŞKİN UYUŞMAZLIKLARIN TAHKİMDE GÖRÜLMESİ

İnsanlık tarihinin bilinen en eski yargılama yollarından birisi tahkimdir. Eskiden beri olan bu yargılama sistemi modern hukukta da önemini korumaktadır. Tahkim taraflar arasında doğmuş veya doğabilecek uyuşmazlıkların devlet yargısı dışında hakem kurulu adında taraflarca seçilen özel kişi veya kişilerce çözülmesidir. Tahkim sonucunda alınan karar kesin hükümdür. Bu sebeple tahkime gidilebilmesi için geçerli bir tahkim sözleşmesi gereklidir. Geçerli bir tahkim sözleşmesi olabilmesi için belli başlı unsurların sözleşmede bulunması gerekmektedir. Tahkim sözleşmesinin geçerliliği için gerekli unsurlardan birisi de tahkime elverişli bir konunun bulunmasıdır. Her hukuk sistemi tahkime elverişlilik kavramını farklı değerlendirmiştir. Türk hukuku ise taraf iradesine dayanmayan ve taşınmaz aynına ilişkin uyuşmazlıkların tahkime elverişli olmadığını kabul etmiştir. Bu çalışmamızda öncelikle tahkimin ne anlama geldiği ve tahkim sözleşmesinin unsurları ele alınmaktadır. Ardından Türk Hukukundaki tahkime elverişlilik kavramı açıklanmaktadır. Bu açıklamalardan sonra gelişmiş ülkelerdeki tahkime elverişlilik kavramı incelenmektedir. Son olarak, taşınmaz aynına ilişkin uyuşmazlıkların tahkimde görülmesinin Türk Hukuku açısından sonuçları ve taşınmaz aynına ilişkin uyuşmazlıkların tahkimde görülebilmesi gerektiğinin nedenleri üzerinde durulmaktadır.

Chronology of Practice: Chinese Practice in Private International Law in 2018

Abstract This paper contains materials reflecting the practice of Chinese practice in private international law in 2018. First, the statistics of the foreign-related civil or commercial cases decided by Chinese courts is extracted from the Report on the Work of the Supreme People’s Court (SPC) in 2018. Second, the SPC judicial interpretation concerning the enforcement of arbitral awards is translated, and the interpretation reflects a pro-arbitration tendency in Chinese courts. Third, six cases, on the validity of a choice of court clause, the conflict of laws issues regarding personal injury on the high seas, visitation rights and uncontested divorces, as well as the recognition of foreign judgments, are noted. Fourth, the paper introduces a case embodying the “one-stop” international commercial dispute resolution mechanism in Chinese courts. Finally, the paper also covers six representative decisions regarding the parties’ status, the presumption of the parties’ intention as to choice of law, and the validity of arbitration agreements.

Application of the CISG to Arbitration Agreements

The CISG is probably the most important example of unification of substantive private law in the world, creating a uniform set of substantive rules. Unlike a civil code, the CISG does not claim comprehensive scope. The Convention applies to one type of legal relations – sale of goods. However, in real life, sale contracts are often accompanied by additional clauses that require specific regulation. In particular, it is common practice for parties to insert arbitration clauses in their international sale contracts. The close connection between sale contracts and arbitration clauses poses a question of their unified or separated regulation. Taking into account the role of arbitration as a natural forum for international merchants, it could have been expected that the CISG would clearly delimit its material scope regarding arbitration agreements. Unfortunately, the text of the CISG is surprisingly cryptic in this regard. The ambiguity of the Convention has supplied arguments both to those supporting its application to arbitration clauses inserted in sale contracts and those favoring application of international or domestic arbitration law to arbitration clauses. The practice of courts and tribunals is also inconclusive, although the majority seems to prefer separation of legal regimes. The author of the article agrees that the text of the CISG can be construed in different ways. However, certain constructions are too complicated to be applied in practice. For that reason, it is difficult to accept the idea that arbitration clauses fall entirely outside the scope of the CISG. At the same time, the legislative history does not provide support for an assumption that the CISG was meant to apply to all aspects of arbitration agreements, in particularly, their formal validity. Therefore, the analysis of scholarly works and practice leads to the conclusion that while formal validity of arbitration agreements is not covered by the CISG, formation of a sale contract, including an arbitration clause, does fall within the scope of the CISG. While this solution will not satisfy purists in both camps, it attempts to solve the ambiguity in the most realistic manner.

China’s 2017 Reform of Its Arbitration-Related Court Review Mechanism with a Focus on Improving Chinese Courts’ Prior-Reporting System

The Chinese Supreme People’s Court has devoted relentless efforts into reforming China’s arbitration regime, before a formal amendment of the PRC Arbitration Law is put on the National People’s Congress’s legislative agenda. In order to address several outstanding issues including the ‘dual-track review system’ existing in Chinese courts’ review process of domestic and foreign/foreign-related arbitrations, the Supreme People’s Court (SPC) issued several judicial documents including two judicial interpretations in 2017, focusing on regulating and unifying Chinese courts’ review of parties’ applications relating to the validity of arbitration agreements, enforcement and/or set-aside of arbitral awards. This reform further aligns Chinese arbitration with international practices, and sends a strong signal to the international arbitration community about China’s commitment to evolve into an arbitration-friendly environment.

Impecuniosity and Validity of Arbitration Agreements

As a private dispute resolution mechanism, arbitration depends on the availability of funds from the parties. However, not infrequently one side will be unable, or unwilling, to advance its share of the costs. Courts faced with such cases can either uphold the validity of the agreement or set aside the agreement and retain jurisdiction over the dispute. This article examines several legal theories courts have relied on when doing so. Initially, it will present the various positions by way of case examples, including that the agreement is rendered invalid due to public policy principles, denial of justice, contractual breaches or waiver. Afterwards, it will analyse various issues that arise from court practice, including conflicts regarding the applicable law, jurisdiction and the burden of proof. The article concludes with the author’s suggestions on how decisions over the potential invalidity of the agreement could be guided.

Parallel Proceedings in Indian Arbitration Law: Invoking Lis Pendens

Prior to the 2015 amendments, the power to appoint arbitrators under section 11 of the Arbitration and Conciliation Act of 1996 in India was vested with the Chief Justice of India, or a High Court. In 2005, the Supreme Court of India re-characterized it as a judicial function, thereby, departing from the position under the UNCITRAL Model Law. While the recent amendments have drastically altered the machinery for appointment of arbitrators, their retrospective application is dubious. As such, the re-characterization of the appointment proceedings as a judicial function still continues to raise concerns, one of which pertains to the jurisdictional overlap between the proceedings for appointment of arbitrators, and those before a judicial authority while deciding an application for seeking a reference to arbitration. Both judicial proceedings are presently permitted by section 8(3) of the 1996 Act to run parallel, even if they involve deciding an identical question concerning the validity of an arbitration agreement. In this article, the authors critique the Indian courts’ failure to identify and address this jurisdictional overlap, and the risks it poses. As a possible solution, the authors rely on the principle of lis pendens, or its common law equivalent of res sub judice, to suggest that where an application seeking reference to arbitration, and involving a question as to existence of a valid arbitration agreement, is pending before a judicial authority, a parallel petition for appointment of arbitrators, raising identical concerns, must not be decided.

Chronology of Practice: Chinese Practice in Private International Law in 2015

This survey is composed of materials reflecting the practice of private international law in China in 2015. First, this survey covers the reports of the Supreme People’s Court (SPC) released in 2016, notably the Report on the Work of the SPC in 2015, which contains the statistics of the foreign-related civil or commercial cases accepted and concluded by Chinese courts. Second, the survey covers laws and judicial interpretations that were revised or took effect in 2015. The important legal instruments include: the Interpretations of the SPC on the Application of the Civil Procedure Law of the PRC, the Provisions of the SPC on Several Issues concerning the Application of Law to the Arrest and Auction of Ships, and the Reply of the SPC to the Request for Instruction by the Shanghai High People’s Court and Others on Issues Concerning Cases of Judicial Review of Arbitral Awards Rendered by the CIETAC and its Former Sub-Commissions. Third, this survey particularly focuses on typical cases decided by various Chinese courts during 2015 in the following areas: classification and definition of foreign elements, jurisdiction (exclusive choice of court agreements), choice of law (international air transport contracts, transfer of share agreements, foreign-related employment contracts), recognition and enforcement of foreign judgments, jurisdiction of the CIETAC and its former sub-commissions, validity of arbitration agreement, recognition and enforcement of foreign arbitral awards, and ad hoc arbitration.

A study on separability and validity of arbitration agreement in international business contracts-with advices and suggestions for Korean merchants

Purpose– The purpose of this paper is to provide Korean merchants and practitioners who are not English native speakers with the practical advices and suggestions in drafting arbitration agreements.Design/methodology/approach– The doctrine of separability of arbitration and the competence-competence principle are studied based on the rules of international conventions and internationally recognized arbitral institutes. In addition, the laws of two common law jurisdictions, which are the USA and the UK are discussed with the Korean arbitration law, which follows the civil law system. This study also includes analysis of cases in order to show application of these two principles to practice and to give practical advices and implications to practitioners.Findings– Most national legislatures and jurisdictions approve the doctrine of separability of arbitration agreement and the competence-competence principle under international commercial arbitration. When there is a dispute regarding the existence or the validity of arbitration agreement, it is determined based on the prima facie test without being affected by the main contract in which the arbitration agreement is inserted. In practice, however, there are many occasions where the arbitration agreements are void or inoperable because of its contents. Many practical advices and suggestions are provided.Originality/value– This paper analyzes arbitration agreements which are used in practice so that it provides many practical advices to practitioners in terms of legal effects of languages and linguistic use.

Choice of Law Rules Applicable For International Arbitration Agreements

The unsettled choice of law issues for preliminary challenges to international arbitration agreements not infrequently spark disputes over the disputes resolution mechanism. This article will examine the efficacy of the traditional choice of law rules widely used in leading jurisdictions covering popular arbitration seats to determine the law for substantive validity of arbitration agreements, i.e., the implied intent test and the closest connection test. Noting these tests fail to produce consistent and predictable results, this study will suggest a practical solution built on a faithful construction of the New York Convention. In addition, the article will briefly discuss about the New York Convention’s form requirements and the choice of law rules applicable to formal validity of arbitration agreements under the UNCITRAL Model Law.

Arbitration in EU Jurisdiction Regulation: Brussels I Recast and a New Proposal

The relationship between the European jurisdiction regime and arbitration is one of the areas generating confusion and disputes. The Brussels I Regulation clearly excludes arbitration from its scope to avoid conflicts with the New York Convention, but arbitration-related issues, such as the validity of arbitration agreements, either as an independent claim or an incidental question, frequently arise in courts. The scope of the Brussels I Regulation in terms of arbitration has been addressed by the Court of Justice of the European Union in a number of decisions, such as Marc Rich v Societa Italiano Impianti, Van Uden, and Front Comor. None of them have provided a satisfactory answer. In order to provide clarification and to reconcile the European jurisdiction Regulation and the New York Convention, the Brussels I Recast has inserted a new recital specifically addressing the relationship between court jurisdiction and arbitration. This article aims to assess the effect of the new recital and whether it has appropriately resolved the difficult questions on the relationship between jurisdiction and arbitration in the European Union.

Study on the Validity of Arbitration Agreement and the Request for the Interim Measures to It

Study on the Validity of Arbitration Agreement and the Request for the Interim Measures to It