Transnational Litigation/Arbitration最新文献

{"title":"Jurisdiction, Arbitrability and Legal Standing in Sports Arbitration: Selected Issues","authors":"D. Mavromati","doi":"10.2139/SSRN.2573622","DOIUrl":"https://doi.org/10.2139/SSRN.2573622","url":null,"abstract":"The distinction between what constitutes a jurisdictional issue and what relates to the merits of the case is not always an easy task for CAS Panels, where a lot of ‘hybrid’ situations arise and there is no categorical answer to these questions, not least because of the particularities of the appeal arbitration procedure. The paper describes the different terms related to jurisdiction, arbitrability and legal standing and examines in particular some issues arising out of the jurisdiction ratione materiae.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"92 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125003365","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":"Judicial Discretion in Light of the New European Rules on Jurisdiction in Civil and Commercial Matters: Reform or Continuity?","authors":"A. Fiorini","doi":"10.2139/ssrn.2861940","DOIUrl":"https://doi.org/10.2139/ssrn.2861940","url":null,"abstract":"The free movement of judgments can be presented as a necessary corollary of the European internal market where goods, people, services and capital move freely. The first step towards the adoption of harmonized private international law provisions was made in 1968 with the conclusion of the Brussels Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. In 1999, the entry into force of the Treaty of Amsterdam transferred the competence to legislate in the field of judicial cooperation in civil matters from the Member States to the European Union. This led to the transformation of the 1968 Brussels Convention, an instrument of inter-governmental cooperation, into a Regulation: Regulation (EC) 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, colloquially known as ‘Brussels I’. Subsequently, a Recast (reform) of the Regulation was agreed in 2012 which substantially amended Brussels I, and will replace it from 10 January 2015. \u0000This paper evaluates the extent to which the new jurisdiction rules of the Brussels I Recast impact on the exercise of judicial discretion by courts in the EU. This question is closely linked with the nature of Brussels I as a civilian instrument. Part I will consider how the activism of the European Court of Justice (now Court of Justice of the EU) had reinforced the civilian imprint of the Brussels I Regulation. Part II will assess whether the Recast is breaking away from what has been, for a period, considered the ‘systematic dismantling of the common law of conflict of laws’ by the EC (now EU). \u0000The article concludes that under the Brussels I Recast, the domain of both anti-suit injunctions and forum non conveniens has, if anything, been even further reduced. However the Recast has not only corrected some of the unwelcome consequences of an overly civilian interpretation of the Brussels I Regulation but simultaneously introduced, on the whole territory of the EU, a harmonised mechanism of jurisdictional regulation based on judicial discretion (which was hitherto available only in a few Member States). On this aspect, the Recast has the great merit of promoting (at least on paper) a better coordination between European and third States procedures, and one that may be easier to anticipate in third countries.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"165 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131826103","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":"WTO Retaliation Rules in Subsidy-Related Cases: What Can We Learn from the US-Upland Cotton Arbitration?","authors":"Song Guan","doi":"10.54648/trad2014027","DOIUrl":"https://doi.org/10.54648/trad2014027","url":null,"abstract":"Retaliation serves as the remedy of last resort in the WTO Dispute Settlement System. In subsidy-related cases, retaliation becomes an option for an injured Member when the offending Member fails to withdraw the prohibited or actionable subsidy, or fails to remove the adverse effect of the actionable subsidy within the required time. This article provides an in-depth overview of retaliation in subsidy-related cases and advocates that 'inducing compliance' should be the goal of retaliation in WTO dispute settlement. To achieve this, the article analyses two main factors relating to the retaliation rules in subsidy-related cases, namely, the determination of the level of retaliation and the principles and procedures for retaliation and cross-retaliation. It also examines how the WTO arbitrators apply the rules in real-case scenarios, using the case of US-Upland Cotton as an example. In the process, the US-Upland Cotton (Article 22.6-US) arbitration decision is shown to have introduced six major developments to the WTO dispute settlement system.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123356622","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":"A Comparative Analysis of Transnational Private Regulation: Legitimacy, Quality, Effectiveness and Enforcement","authors":"F. Cafaggi","doi":"10.2139/ssrn.2530516","DOIUrl":"https://doi.org/10.2139/ssrn.2530516","url":null,"abstract":"Transnational private regulation (TPR) is a growing phenomenon. It creates new markets and dissolves old ones. TPR contributes to the regulation of existing markets, it increases the protection of fundamental rights and it enables or disables communities to participate in global rule making. The standing of TPR and its role regulatory control continues to grow. TPR presents new characteristics departing from more conventional forms of domestic self-regulation. It reflects a transfer of regulatory power from the domestic to the transnational and from the public to the private sphere with significant distributional consequences. Such transfers modify but do not necessarily reduce the role of States especially in relation to standards’ implementation and enforcement. While there is a common core of similar features across regimes, the degree of sector specificity is high, determined by context-specific institutional and economic factors, different drivers and regulatory needs. The Report addresses the development of transnational private regulation in three macro-areas: financial markets, consumer protection and fundamental rights. It encompasses 11 case studies focusing on four dimensions: legitimacy, quality, effectiveness and enforcement. The 11 case study sectors are briefly outlined in Appendix 1. These case studies have been conducted in the context of the research project Transnational Private Regulation: Constitutional Foundations and Governance Design.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-06-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126365261","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":"Private Food Safety and Quality Standards in International Trade","authors":"Oliver von Hagen, J. Wozniak, Mathieu Lamolle","doi":"10.2139/ssrn.2421287","DOIUrl":"https://doi.org/10.2139/ssrn.2421287","url":null,"abstract":"Trade liberalisation is a factor that induced a change in policy and development strategy, the substitution of imports by export in the Mediterranean and elsewhere. This transition has led to the involvement of a large number of producers in export activities and in global or regional supply chains. Many food supply chains span across countries or regions and involve a variety of different operators. Ensuring food safety and production quality, processing and trading practices all along these global chains is a real challenge. This is why, food and safety standards have proliferated in the past decades and are increasingly used to govern food safety and quality issues related to agro-food value chains. Compliance with food standards can be quite challenging for a producer or exporter. In addition, the need for the supply of large volumes while maintaining the same quality and food safety standards often requires costly investments. This is due to the demanding requirements set by food standards. This chapter will also address issues of food safety and quality in the Mediterranean agricultural sector.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"150 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-04-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123222875","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":"Procedural Aspects of Investor-State Dispute Settlement: The Emergence of a European Approach?","authors":"C. Tams","doi":"10.1163/22119000-01504012","DOIUrl":"https://doi.org/10.1163/22119000-01504012","url":null,"abstract":"Chapters on investor-State dispute settlement (isds) are among the controversial sections of international investment agreements. The chapter situates the evolving approach of the European Union (eu) to isds, and it does so in two steps: (i) It assesses the impact of the main eu actors on the formation of the eu’s investment policy and comments on the current backlash against investment arbitration, which has led the European Commission to engage in a public consultation. (ii) Against that background, the article provides a roadmap through the details of isds draft provisions put forward by eu actors. Its focus is on procedural aspects of dispute resolution (notafbly attempts to curtail options for parallel proceedings and certain types of claims) and on the question of consistency (which continues to prompt debate among treaty-makers).","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114262890","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 Status of Investor–State Arbitration: Resolving Investment Disputes Under the Transpacific Partnership Agreement","authors":"L. Trakman","doi":"10.54648/trad2014001","DOIUrl":"https://doi.org/10.54648/trad2014001","url":null,"abstract":"Intense debate is currently brewing over the multistate negotiation of the Transpacific Partnership Agreement (TPPA). The TPPA is likely to be the second largest trade and investment agreement after the European Union, with trillions of investment dollars at stake. However, there is significant controversy and uncertainty over the resolution of investor-state disputes under it. This manuscript evaluates these issues. It concludes with the proposition that states that forsake investor-state arbitrator in favour of domestic courts, among other options, do so at their peril.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"9 11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116959479","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":"Finality of Awards: Is it the Key Feature of the New Saudi Arbitration Law that Will Put the Country in the Global Map of Arbitration?","authors":"Abdulrahman Saleem","doi":"10.2139/ssrn.2354019","DOIUrl":"https://doi.org/10.2139/ssrn.2354019","url":null,"abstract":"Arbitration became an essential tool to resolve international disputes as a result of the globalized and integrated markets, free trade and international investments. Therefore it was crucial for states to reform arbitration related laws in order to attract investments. Saudi Arabia has issued a new arbitration law which showed significant developments chief among them is the concept of finality. Finality of awards is a key element that is shared and adopted by all successful international jurisdictions. This paper will analyse the concept of finality and the consequences of its incorporation in the new Saudi Law. Also, the question of whether or not, the introduction of finality will be enough to transform the country to an international arbitration hub, will be answered in details. It is concluded that the adoption of finality is crucial because it is the essence of arbitration. It allows swift conclusion of disputes, preserve confidentiality and it is money saving. However, there are other reforms to be done in Saudi Arabia to enhance its chance. Finality alone is a major step towards the right direction but more needs to be done in the local legal environment. Examples of steps to be done are in the conclusion of this paper.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-08-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128071739","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 Hague and Geneva Securities Conventions: A Modern and Global Legal Regime for Intermediated Securities","authors":"C. Bernasconi, Thomas Keijser","doi":"10.1093/ULR/17.3.549","DOIUrl":"https://doi.org/10.1093/ULR/17.3.549","url":null,"abstract":"Overview of the core rules of the Hague and Geneva Securities Conventions.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"59 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126120593","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":"International Arbitration in Australia: 2013/2014 in Review","authors":"Albert Monichino QC, A. Fawke","doi":"10.2139/SSRN.2249534","DOIUrl":"https://doi.org/10.2139/SSRN.2249534","url":null,"abstract":"This annual article updates readers on the most important developments in international arbitration in Australia in the past year. It surveys legislative, case law and other developments since 1 September 2012.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"103 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133821728","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}