Transnational Litigation/Arbitration最新文献

Doctrine of Alternative Dispute Resolution in Commercial Contract Particularly Mediation Clauses 商事合同替代性争议解决原则，特别是调解条款

Transnational Litigation/Arbitration Pub Date : 2021-07-23 DOI: 10.2139/ssrn.3892022

S. Islam

{"title":"Doctrine of Alternative Dispute Resolution in Commercial Contract Particularly Mediation Clauses","authors":"S. Islam","doi":"10.2139/ssrn.3892022","DOIUrl":"https://doi.org/10.2139/ssrn.3892022","url":null,"abstract":"The Alternative Dispute Resolution procedure provides an amicable settlement mechanism with the assistance of independent or so-called neutral professionals to resolve conflicts between the contracting parties. Alternative dispute resolution has become increasingly relevant in today’s world, and the number of agreements involving alternative dispute resolution provisions is steadily growing. Alternative dispute resolution is typically more efficient and time-saving than conventional court litigation, which is one of the causes for its development. The current research explores European Union mediation’s most common alternative dispute resolution strategy. It is mainly concerned with the mediation of legal and commercial conflicts. The research discusses European Union alternative dispute resolution patterns and associated requirements under the European Union statute, the United Nations Commission on International Trade Law Model Law on International Commercial Conciliation (2002), as well as other laws defined by alternative dispute resolution related organisations such as the International Chamber of Commerce and Effective Dispute Resolution Centre. It also draws parallels between the United States of America and the courts of some Member States of the European Union regarding alternative dispute resolution matters. Furthermore, it finds alternative dispute resolution in the sense of the right to adequate remedies (fundamental principle of the European Union). The study further explores the roots of alternative dispute resolution, its features and applicability, and the benefits of alternative dispute resolution over litigation/arbitration procedures, both of which tend to facilitate alternative dispute resolution’s broader use of business dispute resolution procedures. The qualitative research methodology will be applying for this research.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"61 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121070589","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}

引用次数: 0

Evaluating ASEAN E-Commerce Laws Using Fuzzy Multi-Criteria Decision Making 基于模糊多准则决策的东盟电子商务法律评价

Transnational Litigation/Arbitration Pub Date : 2021-06-13 DOI: 10.47654/v25y2021i2p105-157

Ali Alibeigi, A. Asemi, A. Munir, M. Baba

{"title":"Evaluating ASEAN E-Commerce Laws Using Fuzzy Multi-Criteria Decision Making","authors":"Ali Alibeigi, A. Asemi, A. Munir, M. Baba","doi":"10.47654/v25y2021i2p105-157","DOIUrl":"https://doi.org/10.47654/v25y2021i2p105-157","url":null,"abstract":"An evaluation of the ASEAN Electronic Commerce Acts (ECAs) is a specific primary step toward their harmonization. This evaluation is complex due to multiple criteria and uncertain information, especially in the case of electronic contracts. This study aims to evaluate and rank the ECAs of the ASEAN countries using a fuzzy multi-criteria decision making method. Seven criteria are determined for the evaluation of ASEAN ECAs. The Fuzzy Analytic Hierarchy Process (FAHP) is applied for weighting of the criteria as well as the evaluation of alternatives. We applied the judgment of 10 experts to fill out the FAHP comparison matrices. The experts’ opinions are fuzziefied and aggregated using the fuzzy set theory. We found the weight of criteria, rank of ECAs in each criterion and the final rank on overall comprehensiveness of the ASEAN ECAs. The results show that the FAHP address the multi criteria evaluation of the laws and regulations. The recognition of the Electronic Message with a weight of 0.216684 is the most important criterion in the evaluation of ECAs, and the Place of Dispatch with a weight of 0.0276018 is the least important. This study has the potential to harmonize the ECAs among ASEAN countries which in turn will increase the number of online transactions and reduce the number of legal disputes.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"65 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124882858","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}

引用次数: 1

Introduction to International Arbitration 国际仲裁概论

Transnational Litigation/Arbitration Pub Date : 2020-09-16 DOI: 10.2139/ssrn.3693704

Anjika Verma

引用次数: 0

Submission to the Department of Justice of Hong Kong Consultation on the Proposed Application of the United Nations Convention on Contracts for the International Sale of Goods to the Hong Kong Special Administrative Region 就《联合国国际货物销售合同公约》适用于香港特别行政区的建议谘询文件提交香港律政司的意见书

Transnational Litigation/Arbitration Pub Date : 2020-08-21 DOI: 10.2139/ssrn.3681064

B. Hayward

{"title":"Submission to the Department of Justice of Hong Kong Consultation on the Proposed Application of the United Nations Convention on Contracts for the International Sale of Goods to the Hong Kong Special Administrative Region","authors":"B. Hayward","doi":"10.2139/ssrn.3681064","DOIUrl":"https://doi.org/10.2139/ssrn.3681064","url":null,"abstract":"In 2020, the Hong Kong Department of Justice undertook a consultative process seeking views on the proposed extension of the United Nations Convention on Contracts for the International Sale of Goods ('CISG') to the Hong Kong Special Administrative Region. Its Consultation Paper proposed extending the CISG to the Hong Kong Special Administrative Region (at the time, only applicable in Mainland China) subject to an Art. 95 CISG reservation regarding Art. 1(1)(b) CISG. That Consultation Paper also set out a draft implementing Bill, and a draft Explanatory Memorandum. A number of consultation questions were raised, upon which public comment was sought. This submission addresses the form of the Consultation Paper's draft implementing Bill. It argues, based on Australian and New Zealand experience with the CISG, that amendments are necessary. It proposes specific amendments to the draft implementing Bill, as well as corresponding changes to the draft Explanatory Memorandum. These recommendations are made so as to help the CISG achieve its intended objectives in Hong Kong.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127076906","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}

引用次数: 0

The UNIDROIT Principles of International Commercial Contracts 2016, a Bridge over Troubled Waters - An Overview of the UNIDROIT Principles from the Perspective of a Long Time User 《2016年国际商事合同通则》，跨越浊水的桥梁——从长期用户的角度审视《通则》

Transnational Litigation/Arbitration Pub Date : 2019-11-22 DOI: 10.2139/ssrn.3491669

Eckart Broedermann

{"title":"The UNIDROIT Principles of International Commercial Contracts 2016, a Bridge over Troubled Waters - An Overview of the UNIDROIT Principles from the Perspective of a Long Time User","authors":"Eckart Broedermann","doi":"10.2139/ssrn.3491669","DOIUrl":"https://doi.org/10.2139/ssrn.3491669","url":null,"abstract":"With a particular focus on the perspective of readers from common law legal systems, this article sets forth why the UNIDROIT Principles of International Commercial Contracts 2016 constitute an important tool for international contract drafting. Using the picture of a “bridge over troubled waters”, the article starts by setting the scene with some examples of different approaches to legal issues in different legal cultures (“troubled waters”). There exists a business need for a bridge across these troubled waters. The article then describes the reasons why the UNIDROIT Principles can serve as a such a – stable – bridge, with due regard to the circumstances of their making and their contents. It gives examples from the authors practical experience with the UNIDROIT Principles since 2001, in arbitration and in international contracting. The article further discusses existing freedoms and limits in using the UNIDROIT Principles. In concluding, the article goes so far to argue that, in some circumstances, using the UNIDROIT Principles 2016 as a tool may avoid malpractice for lawyers and ensure state of the art conduct of international business as required as a matter of corporate law.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-11-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122814036","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}

引用次数: 1

Towards Higher Coherence in Shareholder Claims for Reflective Losses 股东反思性损失索赔的更高一致性

Transnational Litigation/Arbitration Pub Date : 2019-08-19 DOI: 10.2139/ssrn.3505128

Dr. Benny Wuenschmann

{"title":"Towards Higher Coherence in Shareholder Claims for Reflective Losses","authors":"Dr. Benny Wuenschmann","doi":"10.2139/ssrn.3505128","DOIUrl":"https://doi.org/10.2139/ssrn.3505128","url":null,"abstract":"Shareholder claims for reflective losses are widely discussed in international investment treaty arbitration. The debate arises because tribunals in international investment arbitration commonly grant legal standing for shareholders to claim for reflective losses, whereas municipal corporate laws typically bar such claims. This article seeks to provide a legally sound solution that reconciles the opposing opinions by a flexible concept. Unlike the common approach in international investment treaty arbitration, this article regards shareholder claims for reflective losses not only as a matter of arbitral court jurisdiction but also as part of the admissibility assessment. As a consequence, it should be scrutinized whether and, to what extent, immediate compensation of reflective losses to claiming shareholders is required or justified as appropriate treaty-based investment protection. This article shows that immediate payment to shareholders for reflective losses ought to be limited to cases where the payment of damages to the company is not eligible to provide effective investment protection (i.e. to effectively repair the shareholders` reflective losses). In all other cases, the extent of the shareholder`s right ought to be limited to the entitlement to claim for damages with recovery to the company as actually harmed entity.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130961955","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}

引用次数: 0

Which Way Huawei? ISDS Options for Chinese Investors (Introduction) 华为走哪条路?中国投资者的ISDS选择(介绍)

Transnational Litigation/Arbitration Pub Date : 2019-07-12 DOI: 10.1007/978-981-13-5744-2_113-1

Ioannis Glinavos

引用次数: 1

English Contract Law Moves East: Legal Transplants and the Doctrine of Misrepresentation in British Consular Courts 英国合同法东移:法律移植与英国领事法庭的失实陈述原则

Transnational Litigation/Arbitration Pub Date : 2019-06-01 DOI: 10.1093/CJCL/CXZ005

Victoria Barnes, E. Whewell

引用次数: 0

Requirements for the Enforceability of Arbitral Awards: A Comparative Overview 仲裁裁决可执行性的要求:比较综述

Transnational Litigation/Arbitration Pub Date : 2019-04-27 DOI: 10.1017/9781316998250.009

Dário Moura Vicente

{"title":"Requirements for the Enforceability of Arbitral Awards: A Comparative Overview","authors":"Dário Moura Vicente","doi":"10.1017/9781316998250.009","DOIUrl":"https://doi.org/10.1017/9781316998250.009","url":null,"abstract":"Despite the significant efforts undertaken over the past century to unify, or at least harmonize, the law on international arbitration, a uniform set of rules governing the requirements for the enforceability of arbitral awards is still non-existent. In fact, those requirements vary considerably between countries; and to a large extent this is owing to the different approaches in respect of arbitration that prevail in those countries. One may, of course, identify a trend, which globalization and the advent of the information society have largely promoted, to move away from the strict territorialism that still prevailed in this legal domain into the mid-20th Century. But we are still far from the universal recognition of a single, transnational legal order governing arbitration in general and the enforcement of foreign arbitral awards in particular. The differences revealed by legal comparison in this field are not of a purely technical nature, but rather, as this paper seeks to demonstrate, the result of deeply-rooted divergences in respect of the sources of arbitrators’ adjudicatory powers and of the extent to which national courts should give effect to their awards.A pluralism of legal systems is thus, to a large extent, inevitable in the field of international arbitration.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134070181","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}

引用次数: 0

Arbitration on Trial: A Verdict on the Use of Arbitration in Investor-State Dispute Settlement 审判中的仲裁:关于在投资者与国家争端解决中使用仲裁的裁决

Transnational Litigation/Arbitration Pub Date : 2019-04-24 DOI: 10.2139/ssrn.3852802

H. Macleod

{"title":"Arbitration on Trial: A Verdict on the Use of Arbitration in Investor-State Dispute Settlement","authors":"H. Macleod","doi":"10.2139/ssrn.3852802","DOIUrl":"https://doi.org/10.2139/ssrn.3852802","url":null,"abstract":"The use of arbitration in investor-state dispute settlement (ISDS) enables foreign investors to sue host states for alleged breaches of international investment law. But the practise has grown increasingly controversial over the past decade, with respondent states refusing to pay damages, or withdrawing from the system entirely. ISDS is founded on the principles of commercial arbitration that uphold contract law. When used to resolve disputes between foreign companies it is an exercise in private international law. Arbitration in ISDS, however, operates at the level of public international law, because foreign investors enjoy protection standards under treaties signed between their home state and the host state. ISDS thus operates as a form of judicial review, adjudicating on the lawfulness of actions taken by the host State’s Government, Parliament, or Court that may have violated the property rights of the investor. Its decisions can cost host states billions of dollars of taxpayer’s money, and directly impact on rights of citizens protected under International Human Rights Law (IHRL). Yet IHRL is construed as playing little to no role in ISDS arbitration. Thus, the question this paper seeks to answer is whether the continued use of arbitration in ISDS is justified, or not. To do that, ISDS will be put on ‘trial’, charged with being incompatible with public law and the obligations of international law as codified in IHRL. Chapter One presents the case for arbitration in ISDS, Chapter Two the case against, and Chapter 3 reaches a verdict. ISDS is at the frontline of adjudicating globalisation, of striking a balance between profit and people, business and human rights. If it is not justified in law, it can hardly be justified in policy. ","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"58 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123521031","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}

引用次数: 0