LSN: Dispute Resolution (Topic)最新文献

{"title":"United We Stand, Divided We Fall? Collective Redress in the EU, its Lack of Regulation in EU Procedural Law, and Its Impact on the Insurance Sector","authors":"K. Purnhagen","doi":"10.2139/ssrn.2012103","DOIUrl":"https://doi.org/10.2139/ssrn.2012103","url":null,"abstract":"The lack of harmonized collective redress mechanisms in EU private international law results in a substantial increase of litigation risks that are hardly manageable for insurers. Regulation of collective redress mechanisms at EU level is hence desirable. The vertical right to a fair trial as well as the effet utile enables the EU under certain conditions to introduce collective redress mechanisms. The doctrine of implied powers, Art. 114 TFEU as well as Art. 81 TFEU can serve as competence norms in this respect. The introduction of harmonized rules on collective redress mechanisms is hence desirable from the perspective of European insurance law. To cope with the newly emerging risks from the existing incentives-collective-redress-regime, insurers require amending a couple of practices: The risks involving from collective redress in connection with the European law of conflicts require action at European level. In order to avoid litigation risks, the insurance industry requires establishing a steady communication strategy with private intermediaries, who have a special standing in collective redress mechanisms. Insurers might amend their insurance policies in order to cope with these risks. The developmnet of a new insurance product coping with the special litigation challenges from collective redress procedures is advisable.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-05-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130324144","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Arbitration in Autumn","authors":"William W. Park","doi":"10.1093/JNLIDS/IDR001","DOIUrl":"https://doi.org/10.1093/JNLIDS/IDR001","url":null,"abstract":"Often invoked as a metaphor for decline and decay, autumn also carries a sense of robust maturity bringing fruitful harvest and new beginnings. The season’s double symbolism evokes rival visions of arbitration today. Some observers see a golden age of cheap and cheerful proceedings as replaced by a costly complexity that fails arbitration’s promise of coherent and efficient dispute resolution. On closer scrutiny, however, arbitration reveals itself as having arrived at its autumn not in the sense of decay, but rather with vital maturity. Productive exchanges among the various stakeholders in the process serve to refine the counterpoise among accuracy, fairness and efficiency. Although any forecast remains tentative, most signs suggest that arbitration will continue to play a key role in promoting sound economic cooperation. Season of mists and mellow fruitfulness, close bosom-friend of the maturing sun, conspiring with him to load and bless, with fruit the vines that round the thatch-eves run. John Keats, Ode to Autumn (1819) 1","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"99 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114332952","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Arbitration of Investment Disputes under Iranian Investment Treaties","authors":"A. Atai","doi":"10.1108/13685201111127795","DOIUrl":"https://doi.org/10.1108/13685201111127795","url":null,"abstract":"In 2010, the international community including the United Nations, European Union and United States imposed a series of economic and financial sanctions on the Iranian government for its controversial nuclear programme by restricting investments by multinational companies in the Iranian oil and gas resources. In summer of 2010, major oil companies began pulling out of the South Pars block which is the world's second biggest gas field situated in the Persian Gulf. It is expected that more companies will abandon their investment projects for fear of sanctions by the US treasury which targets both US and non-US companies with investments and economic interests in the Iranian petroleum industry. The exiting firms may experience problems in transferring their capital and machinery out of the Iranian jurisdiction and may suffer damages as a result of unfair and discriminatory treatment by the authorities including customs officials, banks, oil ministry, OIETAI and other public bodies. The only remedy available to the foreign investor is to claim compensation for interference or expropriation of its property rights in investment by bringing an arbitration proceedings against the Iranian government and/or state agencies. Iran is party to more than 50 BITs with capital exporting and developing countries which guarantee access to international arbitration pursuant to arbitration rules of ICSID, ICC and UNCITRAL. This article exemplifies the dispute resolution provision contained in Iranian BITs including consent to arbitration, jurisdiction of arbitral tribunal, arbitration procedures, applicable substantive law, location of arbitration and enforcement of arbitral award. The purpose of this article is to provide investors involved in disputes over investments with the Iranian government with the remedy to pursue their compensation claims in a \"neutral, impartial and third party forum\" which is based outside of the Iranian jurisidiction.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-05-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117017317","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Eisenwerk Reconsidered (Twice) - A Case Note on Cargill International SA v. Peabody Australia Mining Ltd, and Wagners Nouvelle Caledonie Sarl v. Vale Inco Nouvelle Caledonie SAS","authors":"B. Hayward","doi":"10.21153/DLR2010VOL15NO2ART125","DOIUrl":"https://doi.org/10.21153/DLR2010VOL15NO2ART125","url":null,"abstract":"On 2 July 1999, the Queensland Court of Appeal handed down its decision in Australian Granites Ltd v Eisenwerk Hensel Bayreuth Dipl-Ing Burkhardt GmbH. The case, which concerned the legal framework governing an international commercial arbitration, became instantly infamous for establishing the so-called Eisenwerk principle, pursuant to which the adoption of arbitration rules was said to constitute a displacement of the UNCITRAL Model Law on International Commercial Arbitration. The decision was not well received in arbitration circles, with a number of academic commentaries criticising the approach taken in Eisenwerk to the interactions and relationships between the curial law governing an arbitration, and procedural rules which may be adopted for the purposes of conducting an arbitration.More than 10 years later, in August 2010, two different courts in two different Australian states had occasion to review the Eisenwerk principle. On 11 August 2010, the New South Wales Supreme Court handed down its decision in Cargill International SA v Peabody Australia Mining Ltd. Just nine days later, the Queensland Court of Appeal itself reconsidered Eisenwerk in Wagners Nouvelle Caledonie Sarl v Vale Inco Nouvelle Caledonie SAS.This case note comprises four main parts. In Part II, the legal background to the two recent decisions (that background consisting of the Eisenwerk case and Australia’s international commercial arbitration legislation) is reviewed. In Parts III and IV, Cargill International SA and Wagners respectively are examined. Finally, in Part V, the current status of Eisenwerk in Australian law (in light of these two decisions and recent legislative reforms) is considered. Both decisions are notable not only because of the controversy surrounding the original Eisenwerk decision, but also because of the differing approach each takes to the Eisenwerk principle and the place that principle now occupies within an amended legislative regime for international commercial arbitration in Australia.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121416770","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Uncertain Future of ICSID in Latin America","authors":"Ignacio Antonio Vincentelli","doi":"10.2139/SSRN.1348016","DOIUrl":"https://doi.org/10.2139/SSRN.1348016","url":null,"abstract":"The purpose of this article is to research the historical interaction of the International Centre for Settlement of Investment Disputes (ICSID) and Latin America, in an effort to suggest that the recent ICSID-unfriendly measures taken by some Latin American countries might not be an aberrational phenomenon in the region. Section One of this paper is devoted to exploring the roots of Latin American's initial rejection and subsequent acceptance of the ICSID as an effective protection for foreign investors. The first part of this section provides a brief summary of the Centre's functioning and jurisdictional requirements, with special emphasis on the doctrinal issue of consent and the Bilateral Investment Treaties (BIT), as a form of expressing consent in advance. Section Two of this paper analyzes the general growing hostility against ICSID in the region. The first part of this section describes different announcements against ICSID made by representatives of several Latin American countries and provides a brief description of the reasoning of this criticism. The second part analyzes the recent events of Bolivia, Ecuador, and Venezuela. For instance, in 2007 Bolivia became the first country ever to denounce the Washington Convention, thus formally withdrawing from ICSID. Ecuador excluded an entire set of claims from the Centre's jurisdiction; and, the Venezuelan Supreme Court recently issued an opinion limiting the reach of the country's consent to submit to the Centre's jurisdiction. The analysis in this Section is performed in light of the particularized historical position of each of these countries towards FDI in the last decades, and the legal implications of the recent hostile ICSID arbitration measures taken. An effort is made to try to highlight the different opinions of respectable practitioners in regard to the consequences of such measures. Finally, the conclusions of the paper suggest that the system of protection of FDI in Latin America may be on the eve of a drastic change. If, moved by the engine of ideology, the rest of Latin America follows the example of Bolivia (the most radical of the ICSID-hostile countries) and denounces the Washington Convention, instead creating a new forum to resolve FDI disputes, at the regional level (as was recently proposed), the future of ICSID in Latin American becomes uncertain.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-02-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121760283","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Transnational Law and the Choice-of-Law Competence of Arbitral Tribunals in International Commercial Arbitration","authors":"Stefan Kirchner","doi":"10.2139/SSRN.988677","DOIUrl":"https://doi.org/10.2139/SSRN.988677","url":null,"abstract":"It is disputed, whether non-national or transnational law rather than the law of a state, e.g. Swiss law, can be the applicable law in international commercial arbitration, and therefore, if non-national lex mercatoria can be the sole applicable law in International Commercial Arbitration. Even more controversial is the question if Arbitral Tribunals can elect to apply non-national law if the underlying arbitration agreement does not provide for an applicable law or is unclear with regard to this matter. It is considered uncertain whether there will be a solution to this question, despite the fact that as early as at its 1992 meeting in Cairo the International Law Association recommended to give such a competence to Arbitral Tribunals. In this short paper we will look at the pros and cons regarding such a competence of Arbitral Tribunals to decide on their own which law to apply if neither the arbitration agreement nor the domestic law applicable in the seat of the tribunal provides for a solution. In developing an approach, we will look at a parallel aspect from an other field of international law in order to shed light on the current state of the law on this question and to define its relation to domestic rules already in place. At first we will look at the legal situation within the UNCITRAL Model Law and in several jurisdictions which have been chose according to the importance of the respective states' economies for international trade. Arguments in favor for a wide competence will be brought to the readers' attention as well as arguments against it with a special look at CISG before a conclusion is drawn based on the current situation, the arguments heard and the needs of the parties involved.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"52 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127146760","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"To Uphold, Modify or Reverse? How the WTO Appellate Body Treats Panel Reports","authors":"Tania Voon","doi":"10.1163/221190006X00298","DOIUrl":"https://doi.org/10.1163/221190006X00298","url":null,"abstract":"A short note examining the Appellate Body's treatment of Panel Reports, including issues such as judicial economy, Panel error, and recommendations for implementation.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128689457","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Economics of Conflict: An Overview","authors":"Michelle R. Garfinkel, S. Skaperdas","doi":"10.2139/ssrn.895307","DOIUrl":"https://doi.org/10.2139/ssrn.895307","url":null,"abstract":"In this chapter, we review the recent literature on conflict and appropriation. Allowing for the possibility of conflict, which amounts to recognizing the possibility that property rights are not perfectly and costlessly enforced, represents a significant departure from the traditional paradigm of economics. The research we emphasize, however, takes an economic perspective. Specifically, it applies conventional optimization techniques and game-theoretic tools to study the allocation of resources among competing activities— productive and otherwise appropriative, such as grabbing the product and wealth of others as well as defending one’s own product and wealth. In contrast to other economic activities in which inputs are combined cooperatively through production functions, the inputs to appropriation are combined adversarially through technologies of conflict. A central objective of this research is to identify the effects of conflict on economic outcomes: the determinants of the distribution of output (or power) and how an individual party’s share can be inversely related to its marginal productivity; when settlement in the shadow of conflict and when open conflict can be expected to occur, with longer time horizons capable of inducing conflict instead of settlement; how conflict and appropriation can reduce the appeal of trade; the determinants of alliance formation and the importance of intra-alliance commitments; how dynamic incentives for capital accumulation and innovation are distorted in the presence of conflict; and the role of governance in conflict management.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123609554","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Optimal Fines in the Era of Whistleblowers - Should Price Fixers Still Go to Prison?","authors":"Paolo Buccirossi, G. Spagnolo","doi":"10.2139/ssrn.871726","DOIUrl":"https://doi.org/10.2139/ssrn.871726","url":null,"abstract":"We review current methods for calculating fines against cartels in the US and EU, and simulate their deterrence effects under different assumptions on the legal and economic environment. It is likely that European fines have not had significant deterrence effects before leniency programs were introduced. Previous simulations of the effects of fines ignore the different type of deterrence that leniency programs bring about, and, therefore, grossly overstate the minimum fine likely to have deterrence effects. With schemes that reward whistleblowers, the minimum fine with deterrence effects falls to extremely low levels (below 10% of the optimal Beckerian fine). Strategic judgement-proofness can and should be prevented by suitable regulation or extended liability. Criminal sanctions, in the form of imprisonment, certainly bring benefits (and costs) in terms of cartel deterrence, but the firms' limited ability to pay does not appear any longer such a strong argument for their introduction.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115543855","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Material Justice and Conflicts Justice in Choice of Law","authors":"Symeon C. Symeonides","doi":"10.1163/9789004480346_010","DOIUrl":"https://doi.org/10.1163/9789004480346_010","url":null,"abstract":"Should conflicts of laws be resolved by applying to them the \"roper law\" regardless of outcome (\"conflicts justice\"), or rather by directly aiming for the proper substantive outcome regardless of law (\"material justice\")? This essay explores the history and current state of these two opposing views regarding the principal goal of conflicts law. It catalogues the recent gains made by the latter view (many more than commonly assumed) and takes the position that the above dilemma should not be resolved in an \"either or\" manner. It accepts the premise that material-justice considerations should be kept in mind as one of the factors that should guide the pursuit of conflicts justice and explores the question of when and how such considerations should be given preference.","PeriodicalId":131966,"journal":{"name":"LSN: Dispute Resolution (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120958864","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}