Arbitration International最新文献_第6页

Two decades after Salini v Morocco: the case for retaining the Salini test with modifications 萨利尼诉摩洛哥案二十年后:修改后保留萨利尼试验的案例

Arbitration International Pub Date : 2023-03-20 DOI: 10.1093/arbint/aiad007

Darius Chan, J. Lai

{"title":"Two decades after Salini v Morocco: the case for retaining the Salini test with modifications","authors":"Darius Chan, J. Lai","doi":"10.1093/arbint/aiad007","DOIUrl":"https://doi.org/10.1093/arbint/aiad007","url":null,"abstract":"\u0000 The definition of an investment under Article 25 of the ICSID Convention continues to attract a divergence of views. Ever since its use in 2001, the Salini Test, in its various forms, has become the predominant method that tribunals use to determine whether there is an investment. However, the Salini Test is hardly free from controversy, and suffers from two significant issues. First, its criteria are often subject to differing interpretations, leading to confusion over how the test should actually be applied. Second, the Salini Test has lost its legal force over time, as it has been relegated to factors that are ‘typical characteristics of an investment’ rather than jurisdictional requirements, of which the latter is arguably its proper role as part of a ‘double-keyhole’ test. This article addresses these issues by taking a detailed look at the individual criteria of the Salini Test and its original purpose. It proposes that (i) the Salini Test remains the best method for determining the meaning of ‘investment’ in Article 25 of the ICSID Convention, and (ii) regardless of whether the Salini Test is jurisdictional requirements or indicative factors, its individual criterion is in urgent need of refinement due to their inconsistent usage.","PeriodicalId":37425,"journal":{"name":"Arbitration International","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43829906","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 international arbitral subpoenas in the United States 在美国执行国际仲裁传票

Arbitration International Pub Date : 2023-03-16 DOI: 10.1093/arbint/aiad008

Tamar Meshel

{"title":"Enforcing international arbitral subpoenas in the United States","authors":"Tamar Meshel","doi":"10.1093/arbint/aiad008","DOIUrl":"https://doi.org/10.1093/arbint/aiad008","url":null,"abstract":"\u0000 The jurisprudence of the United States Supreme Court coupled with restrictive domestic arbitration legislation has created gaps in the enforcement of international arbitral subpoenas in the United States. These enforcement gaps restrict access to evidence by international arbitral tribunals seated in the United States and block such access entirely for foreign-seated international arbitral tribunals. These gaps also make the United States an outlier among other major international arbitration jurisdictions and conflicts with international arbitral practice. However, the recent decision of the United States Court of Appeals for the Ninth Circuit in Day v Orrick, Herrington & Sutcliffe is a first step toward filling these enforcement gaps. This article sets out the legislative framework governing the enforcement of international arbitral subpoenas in the United States, introduces the existing gaps in such enforcement, demonstrates how these gaps fly in the face of international arbitral practice and explains how the Ninth Circuit has now filled at least some of them. If followed by other federal courts, Day v Orrick may pave the way for the enforcement of subpoenas issued by international arbitral tribunals seated both within and outside the United States, and bring the United States back in line with international arbitral practice.","PeriodicalId":37425,"journal":{"name":"Arbitration International","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48312596","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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Correction to: Cairn Energy: when retroactive taxation not justified by prevention of tax avoidance is unfair and inequitable 修正:凯恩能源:当追溯税不合理的防止避税是不公平和不公平的

Arbitration International Pub Date : 2023-03-11 DOI: 10.1093/arbint/aiad009

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Choosing Spanish arbitration law to apply the group of companies doctrine 选择适用公司集团原则的西班牙仲裁法

Arbitration International Pub Date : 2023-03-06 DOI: 10.1093/arbint/aiad005

Miquel Mirambell Fargas

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The issuance and enforcement of interim measures in international arbitration under Chinese law 中国法律下国际仲裁临时措施的发布和执行

Arbitration International Pub Date : 2023-03-02 DOI: 10.1093/arbint/aiad006

Jian’an Wu, Shicong Qin, Xuetong Wang

{"title":"The issuance and enforcement of interim measures in international arbitration under Chinese law","authors":"Jian’an Wu, Shicong Qin, Xuetong Wang","doi":"10.1093/arbint/aiad006","DOIUrl":"https://doi.org/10.1093/arbint/aiad006","url":null,"abstract":"\u0000 The issuance and enforcement of interim measures in international arbitration play a critical role for the parties to resolve the dispute and realize the final arbitral award. For arbitration seated in China, the power to issue interim measures traditionally vests exclusively in the Chinese Courts under the current Arbitration Law and Civil Procedure Law of PRC, except for limited types of arbitration. Aiming to align the Chinese arbitration law with international practices, the Ministry of Justice of China introduced the Arbitration Law of the People’s Republic of China (Amendment) (Draft for Comments) in July 2021 which for the first time empowers the arbitral institutions at the legislative level to issue interim measures. This paper provides a comprehensive overview of the current as well as the newly introduced legal framework in China for the issuance and enforcement of interim measures in foreign-related arbitrations. Although the Amendment recognises the power of arbitral tribunals to issue interim measures in arbitrations seated in China, whether measures issued in arbitrations seated outside of China could be enforced in China remains unclear and the existing Civil Procedure Law of PRC would need to be further clarified to synchronise with the latest reform in Arbitration law.","PeriodicalId":37425,"journal":{"name":"Arbitration International","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-03-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45548561","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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Cairn energy: when retroactive taxation not justified by prevention of tax avoidance is unfair and inequitable 凯恩能源:当追溯税不合理的防止避税是不公平和不公平的

Arbitration International Pub Date : 2023-03-01 DOI: 10.1093/arbint/aiad003

Błażej Kuźniacki, Stef van Weeghel

{"title":"Cairn energy: when retroactive taxation not justified by prevention of tax avoidance is unfair and inequitable","authors":"Błażej Kuźniacki, Stef van Weeghel","doi":"10.1093/arbint/aiad003","DOIUrl":"https://doi.org/10.1093/arbint/aiad003","url":null,"abstract":"\u0000 In late 2020, the Cairn Tribunal concluded one of the largest investor-state arbitration disputes to date. The core of the dispute was retroactive taxation of offshore indirect transfers of shares of companies with underling assets situated in India (crude petroleum and natural gas fields). The Tribunal decided that India had violated the fair and equitable standard under the UK–India bilateral investment treaty by the retroactive taxation without a specific justification for doing so. Notably, India failed to persuade the Tribunal that the retroactive tax law aimed against abusive tax avoidance. In the article, the authors aim to partly respond to a call of Professor Thomas Wälde for a systematization of the red flags arising from the conduct of host states in taxation matters viewed against investment protection mechanisms. By analysing the Cairn Tribunal’s reasoning, the authors identify and examine two red flags: (i) retroactive taxation and (ii) prevention of tax avoidance. Their conclusion is that states should exercise caution with such red flags rather than rush to terminate international investment agreements or carve out tax measures from the fair and equitable standard in remaining and prospective international investment agreements.","PeriodicalId":37425,"journal":{"name":"Arbitration International","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43910230","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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Correction to: Mind the settlement gap: a call for more effective judicialization of international commercial arbitration 注意结算差距:呼吁国际商事仲裁更有效的司法化

Arbitration International Pub Date : 2023-02-23 DOI: 10.1093/arbint/aiad004

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Arbitration: The Art & Science of Persuasion by Dr. Donald E. Vinson and Klaus Reichert 《仲裁：说服的艺术与科学》，唐纳德·E·文森博士和克劳斯·赖歇特著

Arbitration International Pub Date : 2023-02-07 DOI: 10.1093/arbint/aiad002

Ricky Diwan KC

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The international validity of domestic law in investment-treaty arbitration 投资条约仲裁中国内法的国际效力

Arbitration International Pub Date : 2023-02-04 DOI: 10.1093/arbint/aiad001

Martin Jarrett

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Mind the settlement gap: a call for more effective judicialization of international commercial arbitration 注意结算差距:呼吁国际商事仲裁更有效的司法化

Arbitration International Pub Date : 2023-01-25 DOI: 10.1093/arbint/aiac013

Richard G Allemann

{"title":"Mind the settlement gap: a call for more effective judicialization of international commercial arbitration","authors":"Richard G Allemann","doi":"10.1093/arbint/aiac013","DOIUrl":"https://doi.org/10.1093/arbint/aiac013","url":null,"abstract":"\u0000 Despite pervasive judicialization along the lines of public-court litigation, arbitration has largely missed the ‘managerial turn’ in judging that since the 1970s has pushed judicial systems worldwide to shift focus from adjudication to settlement facilitation. Over the past two decades, a transnational consensus appears to have emerged that settlement facilitation is not only compatible with the arbitrator’s mandate but can actually sharpen arbitration’s promise of efficient dispute resolution. But recent statistics continue to confirm anecdotal evidence of a gap in settlement rates between commercial litigation and arbitration, suggesting that arbitrators still fall more into the mould of a passive umpire than a proactive settlement facilitator. This article sheds light on structural barriers to settlement facilitation in the procedural architecture of institutional arbitration rules, explores causes for the lingering underdevelopment of settlement culture in the community of arbitrators and investigates arbitration’s impact on the parties’ settlement negotiation dynamics when ‘bargaining in the shadow of the law’. Informed by insights from behavioural economics, the author develops a blueprint for building settlement facilitation more explicitly into institutional rules and makes the case for switching the default from requiring parties’ express consent to providing for settlement facilitation by arbitrators on an opt-out basis.","PeriodicalId":37425,"journal":{"name":"Arbitration International","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43598182","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