Arbitration International最新文献

The temptation of Occam’s Razor: jurisdiction, admissibility and party autonomy 奥卡姆剃刀的诱惑：管辖权、可受理性和当事人意思自治

Arbitration International Pub Date : 2024-07-23 DOI: 10.1093/arbint/aiae019

Ada Yee Lam Leung, Samuel Yee Ching Leung

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The participation of foreign counsel in Nigeria-seated arbitration proceedings 外国律师参与在尼日利亚所在地进行的仲裁程序

Arbitration International Pub Date : 2024-07-19 DOI: 10.1093/arbint/aiae023

Stanley U Nweke-Eze

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How to assess the res judicata effects of international arbitral awards: giving concreteness to an autonomous approach 如何评估国际仲裁裁决的既判力：使自主方法具体化

Arbitration International Pub Date : 2024-07-18 DOI: 10.1093/arbint/aiae020

Luca G. Radicati di Brozolo, Flavio Ponzano

{"title":"How to assess the res judicata effects of international arbitral awards: giving concreteness to an autonomous approach","authors":"Luca G. Radicati di Brozolo, Flavio Ponzano","doi":"10.1093/arbint/aiae020","DOIUrl":"https://doi.org/10.1093/arbint/aiae020","url":null,"abstract":"\u0000 The article seeks to demonstrate the inadequacy of the ‘conflict-of-laws’ approach to determine the res judicata effects of international arbitral awards. Demystifying the erroneous assumption that the rules on the scope of res judicata are per se a matter of public policy, the authors defend an ‘autonomous’ approach, which dispenses with domestic law and confers broad preclusive effects on awards, with a view to avoiding the re-litigation of a dispute that is, in essence, the same as one already decided by a prior award. The legal bases for such an approach are party autonomy and the inherent powers of arbitrators. Building on the ILA Recommendations and recording the evolution of the conception of res judicata in certain civil law jurisdictions, the article proposes the elements of an arbitration-specific notion of the subject matter scope of the res judicata of awards with respect to issues of substantive law, addressing the situation of the res judicata of an award relied upon in further arbitral proceedings. The authors urge soft-law-making bodies and arbitral institutions to tackle arbitral res judicata proactively and contribute to the development of rules to give secure guidance to arbitrators and courts in determining its proper contours.","PeriodicalId":37425,"journal":{"name":"Arbitration International","volume":" 8","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141827920","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

Confidentiality and privacy of arbitration in the digital era: pies in the sky? 数字时代仲裁的保密性和私密性：天上掉馅饼？

Arbitration International Pub Date : 2024-07-17 DOI: 10.1093/arbint/aiae017

Nobumichi Teramura, Leon Trakman

{"title":"Confidentiality and privacy of arbitration in the digital era: pies in the sky?","authors":"Nobumichi Teramura, Leon Trakman","doi":"10.1093/arbint/aiae017","DOIUrl":"https://doi.org/10.1093/arbint/aiae017","url":null,"abstract":"\u0000 Confidentiality and privacy are essential components of arbitration, preceding the digital data era. This article discusses how arbitration stakeholders—arbitration institutions and associations, arbitrators, attorneys, and commercial users—have increasingly lost control over confidentiality and privacy in international commercial arbitration by adopting digital technologies provided by Internet giants, such as Microsoft, Google, Dropbox, and Zoom. Arbitration institutions and users have, often unconsciously, defined confidentiality and privacy expansively to promote the wider use of email, cloud storage, and video conferencing platforms in conducting arbitration proceedings. However, they have overlooked the extent to which the use of digital technologies exposes private and confidential information to third parties, including but not limited to Big Data. They have also placed undue faith in the capacity of Internet giants that dominate the Internet to protect highly sensitive arbitration proceedings which those giants commercialize to garner public attention including in arbitration disputes. In responding to this troubling reality, the article examines how to better protect confidentiality and privacy in arbitration, by refining existing protections embodied in international rules and guidelines and choosing domestic forums that favour such protections. It also encourages arbitration stakeholders to update the rules and their application to arbitral proceedings to respond to both intended and unintended violations of commercial and personal data. That strategy includes redressing the downstream disclosure of injurious data, including by choosing legal forums that protect against the use of intelligence to violate private and confidential data.","PeriodicalId":37425,"journal":{"name":"Arbitration International","volume":" 42","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141829595","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}

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Enforcing intra-EU ICSID arbitration awards in a post-Achmea world in Europe: could the European Court of Human Rights assist in resolving the deadlock? 在欧洲后阿克米亚世界中执行欧盟内部解决投资争端国际中心的仲裁裁决：欧洲人权法院能否协助解决僵局？

Arbitration International Pub Date : 2024-07-16 DOI: 10.1093/arbint/aiae022

Ceyda Knoebel, Stephanie Collins

{"title":"Enforcing intra-EU ICSID arbitration awards in a post-Achmea world in Europe: could the European Court of Human Rights assist in resolving the deadlock?","authors":"Ceyda Knoebel, Stephanie Collins","doi":"10.1093/arbint/aiae022","DOIUrl":"https://doi.org/10.1093/arbint/aiae022","url":null,"abstract":"\u0000 When, at the enforcement stage, a European Union (‘EU’) Member State’s national court refuses to recognize and/or enforce a final intra-EU arbitration award rendered as per the ICSID Convention on the basis of the Court of Justice of the EU (‘CJEU’)’s decision in Slowakische Republik v Achmea BV, the right to the peaceful enjoyment of possessions, guaranteed by article 1 of Protocol No. 1 (‘A1P1’) of the European Convention on Human Rights (the ‘ECHR’), may be infringed. This article explores that issue. First, and by way of context, it explains the development of the so-called ‘intra-EU objection’ in the context of investor–State arbitration, culminating in the CJEU’s seminal ruling in Achmea and its progenies. Second, it provides an overview of various efforts to enforce intra-EU awards post-Achmea, focusing on ICSID Convention awards that have cleared any post-award remedies under the Convention, and how national courts have approached this. Third, it details how A1P1 of the ECHR might apply to the non-enforcement of intra-EU ICSID awards—engaging in a detailed analysis of the tests that would be applied by the European Court of Human Rights in such an instance. Finally, it discusses the potential remedy before the Court and the consequences for a finding of violation. While this article is focused on final and enforceable ICSID Convention awards, the analysis may be relevant to other intra-EU enforcement scenarios, subject to the specific factual circumstances in those scenarios.","PeriodicalId":37425,"journal":{"name":"Arbitration International","volume":"21 6","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141641658","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

Reasonableness: a guiding light—A probe into the World Court’s landmark judgment on substantive standards of investment protection and its takeaways for investment treaty tribunals 合理性：一盏指路明灯--探究世界法院关于投资保护实质性标准的里程碑式判决及其对投资条约法庭的启示

Arbitration International Pub Date : 2024-05-07 DOI: 10.1093/arbint/aiae012

Mir-Hossein Abedian, Reza Eftekhar

{"title":"Reasonableness: a guiding light—A probe into the World Court’s landmark judgment on substantive standards of investment protection and its takeaways for investment treaty tribunals","authors":"Mir-Hossein Abedian, Reza Eftekhar","doi":"10.1093/arbint/aiae012","DOIUrl":"https://doi.org/10.1093/arbint/aiae012","url":null,"abstract":"\u0000 In its recent Judgement on Certain Iranian Assets, the International Court of Justice (ICJ) extensively addressed various international investment law issues that arose from the interpretation and application of an FCN (Friendship, Commerce, and Navigation). This represents a rare instance of the World Court addressing such matters to such a great extent. Chief amongst the Court’s holdings was the test put forward by the ICJ for assessing the ‘reasonableness’ of state measures for the purpose of evaluating their compliance with international standards of investment protection such as ‘fair and equitable treatment’ and ‘non-expropriation’. Acknowledging a trend in investment treaty jurisprudence, the Court went on to introduce more concrete yardsticks for examining the ‘reasonableness’ of state measures. The ICJ’s holdings on this matter could contribute to the enhanced ‘certainty’ and ‘predictability’ in decisions concerning ‘fair and equitable treatment’ standard and ‘non-expropriation’ obligation. The application of the tests of ‘reasonableness’ formulated by the ICJ in the field of investment treaty law could provide states with a greater margin of appreciation when exercising their ‘right to regulate’. In practical terms, as opposed to a stringent ‘proportionality’ analysis, the ICJ’s formulation of ‘reasonableness’ would mean an alleviated burden of proof for states to justify the propriety of their measures towards foreign investors.","PeriodicalId":37425,"journal":{"name":"Arbitration International","volume":"140 4","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141002125","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

To reason or not to reason: arbitral awards—the conflict between conciseness and the duty to provide reasons under national laws and international rules 说明理由还是不说明理由：仲裁裁决--国内法和国际规则规定的简明扼要与说明理由的义务之间的冲突

Arbitration International Pub Date : 2024-03-23 DOI: 10.1093/arbint/aiae009

Noam Zamir, Neil Kaplan

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Independence and impartiality: Australia’s arbitrator bias test 独立性和公正性：澳大利亚的仲裁员偏见测试

Arbitration International Pub Date : 2024-02-06 DOI: 10.1093/arbint/aiae004

Emma Garrett

{"title":"Independence and impartiality: Australia’s arbitrator bias test","authors":"Emma Garrett","doi":"10.1093/arbint/aiae004","DOIUrl":"https://doi.org/10.1093/arbint/aiae004","url":null,"abstract":"\u0000 This article examines Australia’s arbitrator bias test to reveal its underlying contradictions and ambiguity and suggests that the legislation is amended to remedy these flaws and ensure Australia stays in line with international best practice. In 2010, section 18A of the International Arbitration Act 1974 (Cth) introduced the arbitrator bias test into Australian statute. The provision failed to specify both limbs of the test and relied on Gough, an outdated English case. This produced two opposing decisions from Australia’s federal judiciary: Sino Dragon and Hui. The uncertainty of Australia’s arbitrator bias test strikes at the heart of the process as the independence and impartiality of arbitrators is a fundamental pillar of international commercial arbitration. After critically analysing the progression of England’s approach to the arbitrator bias test over the past century to date, I conclude that the inherent unclearness of Australia’s approach needs to be remedied by the real possibility test being codified in Australian statute. This test reflects the Australian federal judiciary’s most recent approach. My analysis also reveals it is the most appropriate test. By clarifying Australia’s arbitrator bias test those associating with Australia’s international commercial arbitration system have the requisite certainty and clarity to engage with ease.","PeriodicalId":37425,"journal":{"name":"Arbitration International","volume":"71 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139858944","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

Independence and impartiality: Australia’s arbitrator bias test 独立性和公正性：澳大利亚的仲裁员偏见测试

Arbitration International Pub Date : 2024-02-06 DOI: 10.1093/arbint/aiae004

Emma Garrett

{"title":"Independence and impartiality: Australia’s arbitrator bias test","authors":"Emma Garrett","doi":"10.1093/arbint/aiae004","DOIUrl":"https://doi.org/10.1093/arbint/aiae004","url":null,"abstract":"\u0000 This article examines Australia’s arbitrator bias test to reveal its underlying contradictions and ambiguity and suggests that the legislation is amended to remedy these flaws and ensure Australia stays in line with international best practice. In 2010, section 18A of the International Arbitration Act 1974 (Cth) introduced the arbitrator bias test into Australian statute. The provision failed to specify both limbs of the test and relied on Gough, an outdated English case. This produced two opposing decisions from Australia’s federal judiciary: Sino Dragon and Hui. The uncertainty of Australia’s arbitrator bias test strikes at the heart of the process as the independence and impartiality of arbitrators is a fundamental pillar of international commercial arbitration. After critically analysing the progression of England’s approach to the arbitrator bias test over the past century to date, I conclude that the inherent unclearness of Australia’s approach needs to be remedied by the real possibility test being codified in Australian statute. This test reflects the Australian federal judiciary’s most recent approach. My analysis also reveals it is the most appropriate test. By clarifying Australia’s arbitrator bias test those associating with Australia’s international commercial arbitration system have the requisite certainty and clarity to engage with ease.","PeriodicalId":37425,"journal":{"name":"Arbitration International","volume":"86 S23","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139798770","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

Arbitrator resignations: the Law Commission’s proposed reforms 仲裁员辞职：法律委员会的改革建议

Arbitration International Pub Date : 2024-01-31 DOI: 10.1093/arbint/aiae001

C. Tevendale, Anuradha Agnihotri

引用次数: 0