Journal of International Arbitration最新文献_第2页

International Arbitration Agreements in Canada Post-Uber 后uber时代的加拿大国际仲裁协议

IF 0.2

Journal of International Arbitration Pub Date : 2023-08-01 DOI: 10.54648/joia2023017

Tamar Meshel

{"title":"International Arbitration Agreements in Canada Post-Uber","authors":"Tamar Meshel","doi":"10.54648/joia2023017","DOIUrl":"https://doi.org/10.54648/joia2023017","url":null,"abstract":"In Uber v. Heller – a case involving an employment class action subject to an international arbitration agreement – the Supreme Court of Canada decided three issues that threatened to undermine the enforceability of international arbitration agreements in Canada. The Court: (1) read the scope of the Canadian International Commercial Arbitration Acts narrowly; (2) created an exception to the competence-competence principle; and (3) relaxed the test for invalidating arbitration agreements on unconscionability grounds. At the same time, Uber was decided in a highly specific factual context and its ultimate impact on the enforcement of international arbitration agreements was largely left to be determined by lower courts in future cases. This article examines two such cases involving consumer class actions subject to international arbitration agreements. The article analyses the courts’ application of Uber and its effect on their reasoning and on the outcome of these cases. While it is difficult to predict how Uber will unfold in the lower courts over time, the two cases examined in this article suggest that Uber is unlikely to affect the enforcement of most international arbitration agreements in the context of consumer class actions – perhaps the context most akin to that of Uber – let alone in more traditional commercial contexts.\u0000Canada, international arbitration agreements, commercial, Uber v. Heller, employment, consumer, class action, 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":"44867752","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

Limitation Period for Enforcing Arbitral Awards in Nigeria: A Case of Justice Without Remedy 尼日利亚执行仲裁裁决的时效期限：一个司法无救济的案例

IF 0.2

Journal of International Arbitration Pub Date : 2023-06-01 DOI: 10.54648/joia2023015

Kenneth Ugwuokpe

引用次数: 0

ISDS and States’ Ability to Deal with Financial Crisis ISDS和各国应对金融危机的能力

IF 0.2

Journal of International Arbitration Pub Date : 2023-06-01 DOI: 10.54648/joia2023012

Therese Wilson, Yuri Banens, Shanayah Sharif

{"title":"ISDS and States’ Ability to Deal with Financial Crisis","authors":"Therese Wilson, Yuri Banens, Shanayah Sharif","doi":"10.54648/joia2023012","DOIUrl":"https://doi.org/10.54648/joia2023012","url":null,"abstract":"This article reports on the results of an empirical study focused on ‘carve outs’ with respect to financial regulation in bilateral investment treaties (BITs) and free trade agreements (FTAs) entered into during the five-year period between 2015 and 2019. It did so by analysing the eighty-five BITs and FTAs signed in the period 2015 to 2019 inclusive, which were available in English in the UNCTAD Investment Policy hub, identifying three primary types of carve outs. We define carve outs as clauses which either provide an exception or defence to investor-state dispute settlement (ISDS) claims in certain circumstances or exempt altogether particular conduct by a state from the scope of ISDS, in order to protect state sovereignty. The article explores the likely effectiveness of those carve outs in protecting state sovereignty and minimizing ISDS claims against states arising out of regulatory measures taken to protect national economies in the event of crisis. The inclusion of appropriate carve outs is likely to support perceptions of the legitimacy of ISDS in BITs and FTAs. The article considers some earlier cases of ISDS relating to financial regulation and considers the impact that some of the more modern carve outs might have had on those scenarios. The article concludes with recommendations for model clauses and approaches in BITs and FTAs.\u0000Investor-state arbitration, financial regulation, state sovereignty, regulatory carve outs, BITs and FTAs","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45180051","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 Patent Mediation and Arbitration Centre for Europe 一个新的欧洲专利调解和仲裁中心

IF 0.2

Journal of International Arbitration Pub Date : 2023-06-01 DOI: 10.54648/joia2023011

G. Born, Sonya Ebermann

{"title":"A New Patent Mediation and Arbitration Centre for Europe","authors":"G. Born, Sonya Ebermann","doi":"10.54648/joia2023011","DOIUrl":"https://doi.org/10.54648/joia2023011","url":null,"abstract":"With the Unitary Patent (UP) and Unified Patent Court, some Member States of the European Union are creating a new system that reaches beyond the existing European Patent (EP). The goal of the Agreement on a Unified Patent Court is to reduce fragmentation and provide more uniform territorial patent protection by establishing a centralized patent court. In an effort to promote alternative dispute resolution, the Agreement also provides for the creation of a Patent Mediation and Arbitration Centre. This is the first statutory mechanism that recognizes the availability of arbitration for resolving certain types of intellectual property (IP) disputes at an EU-wide level. With thirteen states having ratified the Protocol on Provisional Application, the entry-into-force clause has been triggered and the last part of the preparatory work has commenced. The new system is expected to be fully implemented in early 2023. This article first introduces the new Centre and its role within the framework of the Unitary Patent System (section 1). It then explains the operation of the Centre (section 2) and analyses the Centre’s impact on the arbitrability of claims relating to patent invalidity or scope (section 3).","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47919969","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

Electronic Arbitral Awards: Yea or Nay? A Glimpse Inside the Minds of Arbitral Institutions 电子仲裁裁决：是还是不是？仲裁机构思想掠影

IF 0.2

Journal of International Arbitration Pub Date : 2023-06-01 DOI: 10.54648/joia2023013

Kevin Ongenae

引用次数: 0

The Future of International Arbitration in the Age of Artificial Intelligence 人工智能时代下国际仲裁的未来

IF 0.2

Journal of International Arbitration Pub Date : 2023-06-01 DOI: 10.54648/joia2023014

Orlando Federico Cabrera Colorado

{"title":"The Future of International Arbitration in the Age of Artificial Intelligence","authors":"Orlando Federico Cabrera Colorado","doi":"10.54648/joia2023014","DOIUrl":"https://doi.org/10.54648/joia2023014","url":null,"abstract":"This article postulates that there will be two stages for the implementation ofArtificial Intelligence (AI). In the short term, the first stage will lead to a complementary relationship between predictive machines and humans. After the cost of prediction decreases, new players come to the arbitration arena and the flow of capital to finance AI’s use in international arbitration is widely available, we will see the second stage’s outset where predictive machines will assist in more sophisticated tasks. AI may assist counsel in crafting arguments, and arbitrators in comparing evidence submitted, and finding conflicting fact patterns in the evidence. AI may even decide some aspects of a case. This requires a new division of labour. Lawyers will have to adapt and learn to delegate to such machines while being aware of their limitations. In response, new arbitration specialties will inevitably emerge. However, flesh-and-blood arbitrators will not be eliminated. While predictive machines may be able to decide certain aspects of arbitrations quickly and at a lower cost, the amount of data, the lack of repetitive patterns, inconsistencies, and parties’ agreement that the award shall remain confidential and state the reasons upon which it is based may hinder their capabilities. The current legal framework seems to require drastic changes to make way for AI.\u0000artificial intelligence, machine learning, international arbitration, expert systems, rule systems, the future of arbitration, division of work, intelligence","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45064262","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: 1

What Place Does an Umbrella Clause Have in the New Generation of Bilateral Investment Treaties? 伞式条款在新一代双边投资条约中的地位如何？

IF 0.2

Journal of International Arbitration Pub Date : 2023-03-01 DOI: 10.54648/joia2023007

L. Carroll

{"title":"What Place Does an Umbrella Clause Have in the New Generation of Bilateral Investment Treaties?","authors":"L. Carroll","doi":"10.54648/joia2023007","DOIUrl":"https://doi.org/10.54648/joia2023007","url":null,"abstract":"In the new wave of international investment treaties, investor protections are under scrutiny as states seek to ‘restore’ their right to regulate. The umbrella clause is one investor protection under reconsideration. The perception, held by some, is that the umbrella clause permits an ‘unjustified intrusion’ into a state’s right to regulate within its territory. For that reason, the clause is increasingly being omitted from modern-day treaties. This article undertakes a detailed analysis of the umbrella clause and its divergent construction by investment treaty tribunals. It focuses on four particular complexities associated with the umbrella clause that have confronted tribunals to date. In conducting this analysis, the author seeks to demonstrate that, properly construed, the umbrella clause does not have far-reaching ramifications or interfere with a state’s right to regulate. It has an important place in the new wave of international investment treaties but should be carefully drafted. A suggested formulation, which has in mind the four complexities discussed, is offered up.\u0000Umbrella clause, obligations observance clause, observance of undertakings clause, international investment agreements, bilateral investment treaties, next generation of BITs, investor protections, state’s right to regulate, privity of obligation, investment treaty arbitration","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42642214","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 Human Right of Freedom of Expression in Investor-State Arbitration 投资者与国家仲裁中的言论自由人权

IF 0.2

Journal of International Arbitration Pub Date : 2023-03-01 DOI: 10.54648/joia2023009

Thomas Dillon

{"title":"The Human Right of Freedom of Expression in Investor-State Arbitration","authors":"Thomas Dillon","doi":"10.54648/joia2023009","DOIUrl":"https://doi.org/10.54648/joia2023009","url":null,"abstract":"Investor-state dispute settlement (ISDS) by arbitration under bilateral investment treaties (BITs) frequently entails the application of international law extrinsic to the BIT itself, either as a principle of interpretation or by importation to the BIT of external rules as a matter of construction. Since the Second World War, a huge domain of law has been developed by international tribunals under human rights treaties. These treaties are international law instruments of equal status to any BIT. However, when claimants have brought ISDS claims relating to investments in television and radio broadcasting, human rights law, in particular the right of freedom of expression, has often been ignored or dismissed by arbitral tribunals. Yet a jurisprudence constante in human rights tribunals clearly provides that there is a presumption in favour of freedom to broadcast, a presumption potentially material to the merits of such disputes. The conventional protections provided to investors under BITs require tribunals to apply human rights law, with the result that the presumption of freedom to broadcast throws a burden on states to justify the withholding of necessary permissions. As political interference with free media, often foreign-owned, continues to be reported, the societal responsibility of tribunals to take such rights seriously becomes pressing.\u0000ISDS, investment treaty, arbitration, broadcasting licence, freedom of speech, freedom of expression, censorship, political interference","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47751784","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

Enforcement of Awards v. Enforcement of Judgments in the EU: Arbitration Must Catch Up 裁决的执行与欧盟判决的执行:仲裁必须迎头赶上

IF 0.2

Journal of International Arbitration Pub Date : 2023-03-01 DOI: 10.54648/joia2023008

Yves Herinckx

引用次数: 0

Contractual Arbitration Clauses and Non-Contractual Claims 合同仲裁条款与非合同索赔

IF 0.2

Journal of International Arbitration Pub Date : 2023-03-01 DOI: 10.54648/joia2023006

K. Berger

引用次数: 0