Journal of International Arbitration最新文献

Political Risk and Its Key Role in Mining Disputes Around the World 政治风险及其在全球矿业争端中的关键作用

Journal of International Arbitration Pub Date : 2023-10-01 DOI: 10.54648/joia2023023

Harry Burnett, Peter Brabant

引用次数: 0

ZF Auto. v. Luxshare: Supreme Court’s Withdrawal of Judicial Assistance for Discovery from Private Arbitration ZF汽车。诉Luxshare:最高法院撤销对私人仲裁中证据开示的司法协助

Journal of International Arbitration Pub Date : 2023-10-01 DOI: 10.54648/joia2023025

Janghwan Chung

{"title":"ZF Auto. v. Luxshare: Supreme Court’s Withdrawal of Judicial Assistance for Discovery from Private Arbitration","authors":"Janghwan Chung","doi":"10.54648/joia2023025","DOIUrl":"https://doi.org/10.54648/joia2023025","url":null,"abstract":"Is the judicial assistance intended for the benefit of ‘foreign or international tribunals’ under 28 USC § 1782 available for private arbitral tribunals? The Supreme Court of the United States says it is not because that assistance is intended only for tribunals vested with governmental authority and private arbitral tribunals lack such authority. This strained reading of section 1782 appears to have been reached to achieve policy objectives, not through rigorous analysis of the statutory provision itself. Although the end the Court sought to achieve is not without merit, the means chosen by the Court to achieve the same will give rise to, among others, the unintended consequence of curtailing international commercial arbitration in contravention of the federal policy favouring arbitration. This is so because the Court ignored the root cause of the problem it sought to solve, namely that section 1782 is available to ‘any interested person’ who is not required to be before any tribunal at all. Instead of trying to solve one problem with the wrong solution, the Court should have closed or Congress should close the loophole in section 1782 so that it may properly function and provide the judicial assistance as originally intended by Congress.\u0000Arbitration, arbitral tribunal, discovery, 28 USC § 1782, Hague Evidence Convention, Intel v. AMD, Intel factors","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135762552","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

A New Era of Maritime Arbitration: Ex Machina Determinations 海事仲裁的新时代:机械裁决

Journal of International Arbitration Pub Date : 2023-10-01 DOI: 10.54648/joia2023022

Kevin Chan

引用次数: 0

Arbitrating Investment Disputes in Time of Geopolitical Unrest: Focus on Investment Protection in Russia 地缘政治动荡时期的投资纠纷仲裁:对俄罗斯投资保护的关注

Journal of International Arbitration Pub Date : 2023-10-01 DOI: 10.54648/joia2023024

Larina Mokaled

{"title":"Arbitrating Investment Disputes in Time of Geopolitical Unrest: Focus on Investment Protection in Russia","authors":"Larina Mokaled","doi":"10.54648/joia2023024","DOIUrl":"https://doi.org/10.54648/joia2023024","url":null,"abstract":"Russia’s illegal full-scale invasion of Ukraine in February 2022 and the resulting war have had profound humanitarian and economic consequences affecting the lives of people in Ukraine and the region’s economic stability. The international community imposed unprecedented economic sanctions on Russian entities and individuals to condemn Russia’s actions in Ukraine. As expected, Russia retaliated and issued a series of counter-measures targeting foreign investors within Russia and occupied territories in Ukraine. Such measures will give, and have already given rise to claims by foreign investors in Russia for breaches of international investment law. This article analyses the restrictive measures targeting foreign investment imposed by Russia in response to international sanctions. It further discusses their legal implications for foreign investors. An overview of investment protections afforded under international investment treaties and international conventions as potential sources of redress for foreign investors follows in section 3. The final section highlights the challenges of pursuing investment treaty claims against Russia in the current geopolitical context (section 4).\u0000investment treaty arbitration, sanctions, counter-sanctions, investment protection in Russia, Ukraine, foreign investors, expropriation, fair and equitable treatment, narrowly worded arbitration clause, nationalization","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135762560","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 Validity of Arbitration Agreements Providing for Arbitration in Mainland China Administered by Overseas Arbitration Institutions 境外仲裁机构管理的在中国内地进行仲裁的仲裁协议的效力

Journal of International Arbitration Pub Date : 2023-10-01 DOI: 10.54648/joia2023026

Qianwen Zhang, Jiani Li

{"title":"The Validity of Arbitration Agreements Providing for Arbitration in Mainland China Administered by Overseas Arbitration Institutions","authors":"Qianwen Zhang, Jiani Li","doi":"10.54648/joia2023026","DOIUrl":"https://doi.org/10.54648/joia2023026","url":null,"abstract":"With China increasingly opening up in relation to trade, the number of overseas arbitration institutions practicing in China’s free trade zones is expected to rise. At the same time, however, the validity of arbitration agreements remains uncertain under Chinese arbitration law, with arbitration clauses which tend to permit administration only by domestic arbitration commissions. Chinese arbitration legislation and recent cases demonstrate that this issue can be attributed to difficulties identifying a designated arbitration commission or tribunal, as well as unclear standards to determine the nationality of the arbitration award. Considering relevant decisions of Chinese courts over the past twenty years, this article concludes that the attitude of the Chinese judiciary towards arbitration by overseas arbitration institutions in China has shifted from conservative to more open. However, a number of issues, including confusion around the arbitration jurisdiction (caused by absence of a requirement to specify the arbitration institution) make this area a difficult one for practitioners.\u0000overseas arbitration institutions, the validity of arbitration agreement, free trade zone, the seat of arbitration, the New York Convention","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":"114 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135762003","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

Carbon Credits and Carbon Markets: Future Challenges for ISDS 碳信用和碳市场:ISDS未来的挑战

IF 0.2

Journal of International Arbitration Pub Date : 2023-08-01 DOI: 10.54648/joia2023020

R. P. Fleury

引用次数: 0

Book Review: The FIDIC Red Book: An International Clause-by-Clause Commentary, Christopher R. Seppälä. Kluwer Law International B.V. 书评：FIDIC红皮书：国际条款评注，Christopher R.Seppälä。Kluwer Law International B.V。

IF 0.2

Journal of International Arbitration Pub Date : 2023-08-01 DOI: 10.54648/joia2023021

Dr Nael G. Bunni

引用次数: 0

‘Much Ado About … The Law of the Arbitration Agreement: Who Wants to Know and for What Legitimate Purpose?’ 《关于仲裁协议的法律:谁想知道?为了什么合法目的?》”

IF 0.2

Journal of International Arbitration Pub Date : 2023-08-01 DOI: 10.54648/joia2023016

Jeff Waincymer

{"title":"‘Much Ado About … The Law of the Arbitration Agreement: Who Wants to Know and for What Legitimate Purpose?’","authors":"Jeff Waincymer","doi":"10.54648/joia2023016","DOIUrl":"https://doi.org/10.54648/joia2023016","url":null,"abstract":"Common law cases and commentators have debated whether the law of an autonomous arbitration agreement should be the same as the law designated in a general choice of law clause or should instead, be that of the law of the Seat. The English Law Commission is currently considering this question. This article argues that when common law courts deal with this issue within mere preliminary applications, such as for a stay of litigation, they apply an inappropriate methodology, regardless of the conclusions they come to. They are wrongly trying to impose certainty when simply faced with unclear drafting, an impossible task. In addition, most of the cases that have opined as to the law of the arbitration agreement need not have done so. The cases should have been resolved more simply under different reasoning.\u0000The article then argues that, even if the law of the arbitration agreement is important, the proper question for mere preliminary courts should often simply be, could a reasonable tribunal find validity and sufficient scope under a law it may select under the choice of law and evidentiary discretions it has? If so, the right of a putative tribunal to consider the question fully should be supported. This would then leave it to annulment or enforcement courts to review those findings if asked to do so.\u0000Even courts empowered to make pre-emptive rulings on validity and scope cannot properly do so under the methodology outlined in the leading cases. At least where contested facts could be material, such courts should not decide on these questions without an adequate hearing and without deciding either way on a case by case basis as to the particular parties’ intent.\u0000Arbitration agreement, applicable law, preliminary courts, validity and scope challenges","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48050390","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

Anti-suit Injunctions at Crossroads: Navigating Unique Jurisdictions 反诉讼禁令在十字路口:导航独特的司法管辖区

IF 0.2

Journal of International Arbitration Pub Date : 2023-08-01 DOI: 10.54648/joia2023018

A. Kurlekar, Antonia Birt, Avinash Poorooye

{"title":"Anti-suit Injunctions at Crossroads: Navigating Unique Jurisdictions","authors":"A. Kurlekar, Antonia Birt, Avinash Poorooye","doi":"10.54648/joia2023018","DOIUrl":"https://doi.org/10.54648/joia2023018","url":null,"abstract":"Anti-suit injunctions are typically treated differently in common law and civil law jurisdictions. While common law jurisdictions may favour anti-suit injunctions as enforcing the parties’ agreement to arbitrate, civil law jurisdictions are generally concerned that anti-suit injunctions risk interfering with the jurisdiction of foreign court proceedings. The United Arab Emirates (UAE), where common law and civil law jurisdictions intersect, presents a unique example. The on-shore UAE courts apply civil law while the off-shore Dubai International Financial Centre (DIFC) and Abu Dhabi Global Market (ADGM) Courts apply common law, bringing a new dynamic to the availability and enforcement of anti-suit injunctions. The interaction of these courts and the fine balance achieved has resulted in remarkable developments in the UAE. However, both in the UAE and further afield, certain challenging issues such as interim anti-suit injunctions, interim measures filed in parallel court proceedings, and anti-suit injunctions against third parties related to the dispute serve to test this balance. Nevertheless, with new developments in the region, a positive attitude appears to have emerged on the availability of anti-suit injunctions, opening it up to potential advancements as the jurisprudence continues to evolve.\u0000anti-suit injunctions, arbitration, foreign court proceedings, UAE, arbitration agreement, enforcement","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46691027","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

Thou Shalt Have the Power to Grant Interim Relief: The Reform of the Italian Regime on Arbitral Interim Relief 你应该有权给予临时救济：意大利仲裁临时救济制度的改革

IF 0.2

Journal of International Arbitration Pub Date : 2023-08-01 DOI: 10.54648/joia2023019

Andrea Melchionda, F. G. Santacroce

引用次数: 0