Transnational Litigation/Arbitration最新文献

{"title":"Arbitrators and Accuracy","authors":"William W. Park","doi":"10.1093/JNLIDS/IDP004","DOIUrl":"https://doi.org/10.1093/JNLIDS/IDP004","url":null,"abstract":"An arbitrator's; primary duty remains the delivery of an accurate award, resting on a reasonably ascertainable picture of reality. Litigants wanting only quick or cheap solutions can roll dice, and have no need of lawyers. Evidentiary tools in arbitration should balance sensitivity towards cost and delay against the parties' interest in due process and correct decisions. If arbitration loses its moorings as a truth-seeking process, nostalgia for a golden age of simplicity will yield to a clarion call for reinvention of an adjudicatory process aimed at discovering what happened, finding relevant legal norms and properly construing contract language. Though not so jealous as to exclude all rivals, truth does insist on being first among equals.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127684621","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":"New Dog, Old Tricks: Solving a Conflict of Laws Problem in CISG Arbitrations","authors":"B. Hayward","doi":"10.54648/joia2009022","DOIUrl":"https://doi.org/10.54648/joia2009022","url":null,"abstract":"Parties to international sale of goods transactions often exercise their rights to choose a governing law and refer disputes to arbitration. Where their choice is incomplete, as is the case where the Contracts for the International Sale of Goods (CISG) is chosen, complex conflict of laws problems can arise, including disputes over the governing limitation period. While such disputes are traditionally resolved using conflict of laws methodologies, this article argues a superior solution can be achieved through procedural law. Through a simple discretion, arbitral tribunals may apply the limitation period from either the International Institute for the Unification of Private Law (UNIDROIT) Principles 2004 or the UN Limitation Period Convention. Such an approach makes determination of the governing limitation period a simpler process, allowing parties to focus their attention on what they are really concerned with—the merits.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128451392","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":"Security for Costs in International Commercial Arbitration","authors":"W. Gu","doi":"10.2139/ssrn.3200080","DOIUrl":"https://doi.org/10.2139/ssrn.3200080","url":null,"abstract":"In this article, I present the existing legal rules surrounding security for costs in international arbitration by performing a representative survey of national arbitration laws and institutional rules of both common law and civil law jurisdictions, across legal regimes of different theoretical perspectives. I then turn to the effect of policy considerations on the evaluation of desirability of ordering security for costs, as well as the amount and the procedures of offering security for costs. Lastly, I review the experiences across the globe and argue that amid the global trend in favor of arbitration, there needs to be a more unified procedural regime across jurisdictions in security for costs to allow international commercial arbitration to evolve towards greater flexibility and efficiency while accounting for the commercial need of legal certainty.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128112157","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":"Distinguishing Investors from Exporters Under Investment Treaties","authors":"M. Feldman","doi":"10.1163/9789004291102_035","DOIUrl":"https://doi.org/10.1163/9789004291102_035","url":null,"abstract":"Multinational corporations, when engaging in global operations, often act as both investors and exporters. Such intertwined investment and export operations can significantly complicate the application of investment treaty protections, which generally are intended to apply to investors, but not to exporters. When attempting to distinguish investor and exporter activities, tribunals constituted under the investment chapter of the NAFTA have considered three kinds of limitations on recovery: (i) a causation limitation, (ii) a territorial limitation, and (iii) a capacity limitation. Of these three alternatives, the capacity limitation has the greatest potential to serve as an adaptable, effective criterion for ensuring full treaty protections for foreign investment while safeguarding against the exploitation of NAFTA's investment chapter by exporters. When determining whether a claimant has acted in its capacity as an investor, a tribunal should be guided by the nature of a claimant's global business. The capacity limitation can be applied not only in NAFTA Chapter Eleven cases, but also more generally in disputes under other investment treaties, so long as textual support for the limitation exists under the applicable treaty. Thus, the capacity limitation can serve as a widely-available and effective resource for tribunals facing challenging questions concerning the proper application of investment treaty protections to integrated investment and export operations of multinational corporations.","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"165 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115042182","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 Emergence of Hybrid International Commercial Courts and the Future of Cross Border Commercial Dispute Resolution in Asia","authors":"Firew Kebede Tiba","doi":"10.2139/SSRN.2940918","DOIUrl":"https://doi.org/10.2139/SSRN.2940918","url":null,"abstract":"The bulk of international commercial disputes are resolved by national courts. In Asia, regional international arbitration centres in places such as Shanghai, Hong Kong, Singapore, and Tokyo have also been partaking in these exercises albeit at varying levels of popularity. While commercial arbitrations remain popular, the influence of these bodies in driving convergence has been questioned. This has been in part due to the confidential nature of their awards and their ad hoc nature. The uptake of international commercial instruments in the region is growing, but the extent of harmonization of international commercial law remains weak. Even in countries such as Australia that have taken steps to adopt international commercial instruments, the efficacy of international law has been called into question. Application of these international rules have not been promising. In this regard, the lacklustre performance of the Convention for the International Sale of Goods (CISG) could be cited. There is no doubt that judicial institutions play a crucial role in achieving the lofty ideal of harmonisation. At [*32] the other end of the spectrum, the establishment of fully blown regional international courts for commercial disputes is further away. This has been hampered by the obvious sovereignty concerns and the relative success of international commercial arbitration. It has been a little over a year since Singapore, a country that is already one of the most preferred arbitration destinations in the world, moved to establish an International Commercial Court, a unique institution that pushed the frontiers of cross border commercial dispute resolution. The Court heard its first case in May 2015 on a referral from the High Court. This case involved a dispute between Indonesian and Australian mining companies. n1 The court is unique in that it allows appointment of foreign judges and dispenses with the application of Singapore's Rules of Evidence. Page 1 Naturally all Singapore regular courts are expected to apply the Singapore Rules of Evidence in disputes before them. However, an exception is made in regards to matters coming before the Singapore International Commercial Court (SICC), where on application of the parties the Singapore Rules of Evidence may be disapplied pursuant to Order 110, Rule 23. n2 As will be discussed later in this essay, this hybrid institution promises to combine the best of international commercial arbitration and that of judicial settlement of disputes. Elsewhere in Asia, we have had the Dubai International Financial Centre Courts of First Instance and Appeal, the Qatar International Court and Dispute Resolution Centre and, most recently, the Abu Dhabi Global Market Courts. The need for specialised commercial division has long been recognised in places like London, Delaware North, and Victoria in Australia. It is one thing to have a commercial division and yet another to make these divisions have an international orientation. This","PeriodicalId":313622,"journal":{"name":"Transnational Litigation/Arbitration","volume":"69 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115957276","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}