Journal of International Arbitration最新文献_第3页

Baseball Arbitration as a Suitable Alternative for Construction and Real Estate Disputes 棒球仲裁:解决建筑和房地产纠纷的合适选择

IF 0.2

Journal of International Arbitration Pub Date : 2023-03-01 DOI: 10.54648/joia2023010

Rodrigo Barradas, J. Vázquez

{"title":"Baseball Arbitration as a Suitable Alternative for Construction and Real Estate Disputes","authors":"Rodrigo Barradas, J. Vázquez","doi":"10.54648/joia2023010","DOIUrl":"https://doi.org/10.54648/joia2023010","url":null,"abstract":"Baseball Arbitration (or Final Offer Arbitration (FOA)) is a dispute resolution mechanism to resolve controversies where each party submits a final offer. The arbitral tribunal must then decide by picking only one of these proposals. Given the arbitrators’ powers’ limitations, these proceedings are usually shorter and less expensive than traditional dispute resolution mechanisms. In addition, contrary to conventional arbitration, parties tend not to assume unrealistic or extreme positions, which could promote amicable settlement since it is an all-or-nothing proceeding.\u0000FOA could effectively resolve monetary disputes in industries where parties seek to preserve the commercial relationship while avoiding unnecessary delays. Therefore, Baseball Arbitration could be advantageous in the construction and real estate sectors. However, most arbitral institutions do not have specific rules for conducting Baseball Arbitration proceedings.\u0000This article proposes a model clause for parties wishing to submit their disputes to FOA. In our proposal, the arbitrator will receive the parties’ final offers and then issue its reasoned award, asserting the rationale to choose one offer over the other.\u0000Arbitration, Baseball Arbitration, Final Offer Arbitration, ADR Mechanisms, Construction Disputes, Construction Arbitration, Real State Disputes, Real Estate Arbitration, Model Clauses","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":"43927037","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

Book Review: Law, Practice and Procedure of Arbitration in India (2021), Sundra Rajoo. Thomson Reuters. 1st ed. Thomson Reuters South Asia Private Limited. Gurgaon. India. 2021 书评：《印度仲裁的法律、实践和程序》（2021），Sundra Rajoo。汤森路透。汤森路透南亚私人有限公司。古尔冈。印度2021

IF 0.2

Journal of International Arbitration Pub Date : 2023-02-01 DOI: 10.54648/joia2023005

Shanelle Irani, Vamika Puri

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The Complex and Evolving Legal Status of Ad Hoc Arbitration in China 我国特设仲裁法律地位的复杂性及其演变

IF 0.2

Journal of International Arbitration Pub Date : 2023-02-01 DOI: 10.54648/joia2023003

Panfeng Fu

{"title":"The Complex and Evolving Legal Status of Ad Hoc Arbitration in China","authors":"Panfeng Fu","doi":"10.54648/joia2023003","DOIUrl":"https://doi.org/10.54648/joia2023003","url":null,"abstract":"The current People’s Republic of China (PRC) Arbitration Law rejects ad hoc arbitration by requiring the arbitration agreement to specify an arbitration institution. However, such rejection does not constitute a barrier to the enforcement of foreign ad hoc arbitration awards under the New York Convention. To determine the validity of a foreign ad hoc arbitration agreement, China adopts a conflict-of-laws approach in ascertaining its applicable law. Recent years have witnessed China’s initiative to experiment with ad hoc arbitration in its Free Trade Zones (FTZs). The draft revised PRC Arbitration Law published by the Chinese Ministry of Justice (MOJ) in 2021 proposes allowing foreign-related disputes to be resolved by ad hoc arbitration. This article argues that the legal status of ad hoc arbitration in China demonstrates a complex and evolving nature. It notes that while complete legalization of ad hoc arbitration in China is unlikely in the short term, its legal status will continue to evolve, reflecting the complicated relationship between China’s bureaucratized arbitration regime and its increasingly sophisticated arbitration market.\u0000Ad Hoc Arbitration, Legal Status, PRC Arbitration Law, Article 16, Article 18, Conflict-of-Laws Approach, Enforcement of Foreign Arbitration Awards, New York Convention, Free Trade Zones, China’s Bureaucratized Arbitration Regime","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":"1 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2023-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41652399","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 Distinctive Aspects of Institutional Arbitration Under Egyptian Law 埃及法律下机构仲裁的独特方面

IF 0.2

Journal of International Arbitration Pub Date : 2023-02-01 DOI: 10.54648/joia2023004

Sherif Elatafy

{"title":"The Distinctive Aspects of Institutional Arbitration Under Egyptian Law","authors":"Sherif Elatafy","doi":"10.54648/joia2023004","DOIUrl":"https://doi.org/10.54648/joia2023004","url":null,"abstract":"Both the Egyptian Arbitration Law of 1994 and the relevant jurisprudence are devoid of any rule that regulates arbitral institutions’ incorporation and good standing. However, recently, and only after the Chevron Sham Arbitration saga, Egyptian courts have tackled the issue of arbitral institutions’ legal framework, where many subsequent related questions were then raised. For instance, is there an actual legal framework that governs arbitral institutions in Egypt? If so, what is the statute applicable to that effect? Are all kinds of arbitral institutions, operating in Egypt, subject to the same legal framework or statute? Is there an actual need to enact a new specific statute to avoid the recurrence of a fraudulent sham arbitration like the Chevron one? This article will attempt to answer all these questions, despite the dearth of Egyptian jurisprudence. It will also shed light on the collateral, but essential, problematic issues that arise while analysing the legal framework of arbitral institutions in general, and the Egyptian Sports Centre, in particular. As a part of this analytical study, and for purposes of comprehensiveness, the current article demonstrates the legal consequences of administering an institutional arbitration (i.e., the internationalization of institutional arbitration) as well as the consequences of wrongful administration of institutional arbitration, with a particular attention to the issue of a fraudulent administration such as in the case of the Chevron Sham Arbitration.\u0000Arbitral Institutions, Incorporation, Good Standing, Sham Arbitration, Egyptian Sports Centre, Local Appeal Body, Sports-Related Body, Internationalization, Fraud","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2023-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43901142","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

Dealing with Accusations of Illegality in International Arbitration: Dutch Perspectives on the Interaction Between Private Law and Criminal Law Standards 处理国际仲裁中的非法性指控:荷兰视角下的私法与刑法标准互动

IF 0.2

Journal of International Arbitration Pub Date : 2023-02-01 DOI: 10.54648/joia2023002

Bastiaan Van Zelst

引用次数: 0

Exploring the Suitability of Arbitration for Settling ESG and Human Rights Disputes 探讨仲裁在解决ESG与人权纠纷中的适用性

IF 0.2

Journal of International Arbitration Pub Date : 2023-02-01 DOI: 10.54648/joia2023001

Gauthier Vannieuwenhuyse

{"title":"Exploring the Suitability of Arbitration for Settling ESG and Human Rights Disputes","authors":"Gauthier Vannieuwenhuyse","doi":"10.54648/joia2023001","DOIUrl":"https://doi.org/10.54648/joia2023001","url":null,"abstract":"Environmental, Social and Governance (ESG) and Human Rights (HR) have become two of the most widely discussed topics in the last few years for businesses and law firms alike, but to what extent can ESG and HR issues be resolved through arbitration? This article examines the ESG and HR obligations that currently exist for companies, and analyses their gradual shift from soft law to binding hard law obligations. The rising number of ESG and HR related hard law obligations, paired with the increasing commercial awareness of the importance of ESG and HR, naturally leads to a greater potential for disputes. This article explores to what extent arbitration may be an appropriate dispute resolution method for these claims. In particular, it recognizes that although limitations to arbitration (such as in transparency and third party participation) exist, amendments have already been made to institutional rules to better position arbitration towards handling ESG and HR disputes. With the continuation of this trend, it is expected that arbitration will be more commonly used to resolve ESG and HR disputes.\u0000ESG, Environmental, Social, Governance, Human Rights, Dispute, Arbitration, ADR, Climate Change, Sustainability","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2023-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45511782","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

Book Review: The Protection of Intellectual Property Rights Under International Investment Law, Simon Klopschinski, Christopher S. Gibson & Henning Grosse Ruse-Khan. 1st ed. Oxford: OUP. 2021 书评:《国际投资法下的知识产权保护》，Simon Klopschinski, Christopher S. Gibson, Henning Grosse Ruse-Khan著。第一版。牛津:OUP。2021

IF 0.2

Journal of International Arbitration Pub Date : 2022-12-01 DOI: 10.54648/joia2022038

U. Kriebaum

引用次数: 0

Corruption Allegations in Arbitration: Burden and Standard of Proof, Red Flags, and a Proposal for Systematization 仲裁中的腐败指控:举证责任和标准、危险信号和系统化建议

IF 0.2

Journal of International Arbitration Pub Date : 2022-12-01 DOI: 10.54648/joia2022035

Martim Della Valle, Pedro Schilling de Carvalho

{"title":"Corruption Allegations in Arbitration: Burden and Standard of Proof, Red Flags, and a Proposal for Systematization","authors":"Martim Della Valle, Pedro Schilling de Carvalho","doi":"10.54648/joia2022035","DOIUrl":"https://doi.org/10.54648/joia2022035","url":null,"abstract":"Arbitration is widely regarded as one of the most efficient mechanisms to solve complex commercial disputes. However, it has not yet been able to present sufficiently cohesive solutions for cases involving contracts obtained through corruption and, oftentimes, the current arbitrator’s toolkit might not be enough to deal with such disputes without compromising the decision, risking its enforceability, and eventually unsettling the status quo of arbitration as an adequate mechanism for dealing with commercial disputes. To harmonize the current treatment of corruption allegations in arbitration and the broader societal fight against corruption, this article analyses the issues arising out of corruption allegations in arbitration and demonstrates how burden and standard of proof can be used as the missing link to seek such cohesiveness. Moreover, it analyses how the use of red flags – which can be obtained primarily from anti-corruption compliance practice – in arbitration is desirable. As a result, this article proposes a systemized framework for addressing allegations of corruption, in which a red flag of great gravity or the accumulation of red flags, in the absence of counterevidence or sufficient evidence to rule out the plausibility of the risk, authorizes arbitrators to apply negative inferences vis-à-vis the suspicion of corruption.\u0000corruption, bribery, standard of proof, burden of proof, red flags, adverse inferences, public policy, soft law, compliance, United Nations Convention Against Corruption, Civil Law Convention on Corruption","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42428137","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

Dutch Supreme Court Finds for the First Time on Corruption and Arbitration in Context of Annulment Proceedings: Case Report on the Bariven and Yukos Decisions 荷兰最高法院首次在撤销诉讼的背景下发现腐败和仲裁:关于巴瑞文和尤科斯决定的案例报告

IF 0.2

Journal of International Arbitration Pub Date : 2022-12-01 DOI: 10.54648/joia2022037

Wouter J.L. de Clerck

{"title":"Dutch Supreme Court Finds for the First Time on Corruption and Arbitration in Context of Annulment Proceedings: Case Report on the Bariven and Yukos Decisions","authors":"Wouter J.L. de Clerck","doi":"10.54648/joia2022037","DOIUrl":"https://doi.org/10.54648/joia2022037","url":null,"abstract":"This article reports on the findings of the Dutch Supreme Court in its first two decisions on corruption and arbitration in the context of annulment proceedings. In the Bariven decision of 16 July 2021, the Supreme Court reinstated an arbitral award which the Court of Appeal in The Hague had annulled, citing strong indications of corruption. The Yukos decision was handed down on 5 November 2021 but did not put an end to a saga which has been playing out in the Dutch courts since 2014. The annulment proceedings are currently pending before the Amsterdam Court of Appeal which will have to find on the merits of the Russian Federation’s procedural fraud defence following cassation by the Supreme Court over a refusal to admit this defence by the Hague Court of Appeal. This article is a case report, and its aim is limited to providing non-Dutch readers with insight into the Bariven and Yukos Supreme Court decisions. The article includes an introduction on Dutch annulment proceedings, the public policy exception as applied in such proceedings, and the related but distinct action of revocation.\u0000international arbitration, corruption, Netherlands, annulment, revocation, Bariven, Yukos","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43271133","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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Two Brief Comments on the Law Commission’s Proposed Reform of the Arbitration Act 1996 法律委员会关于1996年《仲裁法》改革建议的两点意见

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Journal of International Arbitration Pub Date : 2022-12-01 DOI: 10.54648/joia2022033

J. Grierson

引用次数: 0