Journal of International Arbitration最新文献_第5页

Pragmatism Above All: The New York Convention Translation Requirement from the Dutch Perspective 实用主义至上:荷兰视角下的《纽约公约》翻译要求

IF 0.2

Journal of International Arbitration Pub Date : 2022-08-01 DOI: 10.54648/joia2022027

Thomas Stouten, L.H.J. Baijer, P. Wilinski

{"title":"Pragmatism Above All: The New York Convention Translation Requirement from the Dutch Perspective","authors":"Thomas Stouten, L.H.J. Baijer, P. Wilinski","doi":"10.54648/joia2022027","DOIUrl":"https://doi.org/10.54648/joia2022027","url":null,"abstract":"Pursuant to the procedure envisaged by the New York Convention, a party seeking to recognize and enforce a foreign arbitral award shall translate the agreement to arbitrate and the arbitral award into an official language of the country where the enforcement is sought.\u0000By and large, such a requirement would not be difficult to interpret. At the same time, the obligation to produce a translation often involves additional (and potentially) high costs to the already expensive arbitration process. Moreover, providing a translation from the language that the parties chose may be considered overly formalistic and going against the pro-enforcement spirit of the New York Convention. This would be particularly so in cases where the enforcement judge’s language proficiency would be sufficient to evaluate the content of the award.\u0000This article discusses the consequences of failing to produce a translation, including complicating factors that arise when only the relevant part of the award has been translated by a party applying for recognition and enforcement under the New York Convention.\u0000New York Convention, translation requirement, pragmatism, translation costs, disbursement, enforcement of arbitral award, pro-enforcement bias","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43220503","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

ISDS and Nazis or History Without Context: A Reply to Gary Born ISDS与纳粹或没有背景的历史:对加里·伯恩的回答

IF 0.2

Journal of International Arbitration Pub Date : 2022-08-01 DOI: 10.54648/joia2022025

Velimir Živković

{"title":"ISDS and Nazis or History Without Context: A Reply to Gary Born","authors":"Velimir Živković","doi":"10.54648/joia2022025","DOIUrl":"https://doi.org/10.54648/joia2022025","url":null,"abstract":"Gary Born’s article ‘The 1933 Directives on Arbitration of the German Reich: Echoes of the Past?’ fascinates for good and not so good reasons in almost equal measure. The author skillfully illuminated a rarely-discussed episode of arbitral legal history and aimed to apply its lessons to current debates surrounding investor-state dispute settlement (ISDS) reform. The overarching argument is that criticism and/or reform of investor-state arbitration is reckless and reminiscent of National Socialist efforts to curb private-public arbitration – risking undermining the rule of law and even allowing ‘history to repeat itself’. As much as the legal history part is a worthy contribution, this later part is laden with problematic claims and unfortunate parallels. The criticisms and potential (fairly limited) reforms of ISDS are portrayed as missteps towards a totalitarian abyss. Yet as much as investor-state arbitration can sometimes help promote the rule of law, it is not an indispensable ‘bulwark’ against state oppression. ISDS is a historically recent invention, with an even more recent case law. It deals with wide-reaching and objectively often controversial substantive rules, making reform proposals unsurprising. Crucially, even if investorstate arbitration disappeared completely, the history of Nazi horrors would not repeat itself.\u0000commercial arbitration, investor-state arbitration, history of arbitration, ISDS reform, Nazism","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46009964","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

Empirical Research on the Alleged Invalidity of Arbitration Agreements: Success Rates and Applicable Law in Setting Aside and Enforcement Proceedings 仲裁协议无效指控的实证研究：撤销和执行程序的成功率与适用法律

IF 0.2

Journal of International Arbitration Pub Date : 2022-06-01 DOI: 10.54648/joia2022014

Maxi Scherer, O. Jensen

{"title":"Empirical Research on the Alleged Invalidity of Arbitration Agreements: Success Rates and Applicable Law in Setting Aside and Enforcement Proceedings","authors":"Maxi Scherer, O. Jensen","doi":"10.54648/joia2022014","DOIUrl":"https://doi.org/10.54648/joia2022014","url":null,"abstract":"This article is based on a data set of over 1,000 judicial decisions in setting aside, recognition and enforcement proceedings. Although sometimes cited as one of the most common grounds for setting aside an award or refusing its recognition and enforcement, the invalidity of the arbitration agreement was raised in less than one-fifth of those decisions. It was confirmed in under one-third of those cases. This article examines which arguments for invalidity were more successful than others and how courts have determined the law applicable to the (in)validity of the arbitration agreement. Notably, less than half of the courts in this data set have engaged in a meaningful conflict of laws analysis. Where they have done so, there does not appear to be a consensus on how the law applicable to the arbitration agreement should be determined and what significance a choice of law clause in the main contract has in this regard.\u0000Arbitration agreement, arbitral awards, setting aside, recognition and enforcement, applicable law, invalidity, New York Convention, UNCITRAL Model Law on International Commercial Arbitration, empirical research","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47059231","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

Empirical Analysis of National Courts Vacatur and Enforcement of International Commercial Arbitration Awards 国家法院空缺与国际商事仲裁裁决执行的实证分析

IF 0.2

Journal of International Arbitration Pub Date : 2022-06-01 DOI: 10.54648/joia2022013

R. Alford, C. Baltag, Matthew E.K. Hall, M. Sasson

{"title":"Empirical Analysis of National Courts Vacatur and Enforcement of International Commercial Arbitration Awards","authors":"R. Alford, C. Baltag, Matthew E.K. Hall, M. Sasson","doi":"10.54648/joia2022013","DOIUrl":"https://doi.org/10.54648/joia2022013","url":null,"abstract":"The empirical research in this article relies on a data set including all national court decisions on recognition, enforcement and setting aside (vacatur) of international commercial arbitration awards available in the Kluwer database that were rendered from 1 January 2010 to 1 June 2020.Within the time parameters of this study, there were 504 vacatur actions and 553 offensive recognition and enforcement actions. Those decisions were rendered by national courts in 74 different jurisdictions. The research coded every argument raised by defendants challenging the recognition and enforcement of awards based on grounds set forth in Article V of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, as well as every argument raised by claimants to challenge awards based on the grounds set forth in Article 34 of the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration. In addition to these grounds, several others, outside the two instruments mentioned above, have been identified in the data set. The results of the research are presented in the article below. An overarching conclusion would be that courts overwhelmingly enforce foreign arbitration awards, in 73% of the cases in the data set, without significant variations between courts in various jurisdictions, and, respectively, overwhelmingly refuse to vacate arbitral awards, with courts vacating in only 23% of cases, again without significant variations between courts in various jurisdictions.\u0000arbitral award, national court, set aside, vacatur, recognition and enforcement, public policy, UNCITRAL, New York Convention, due process, arbitrationRoger","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47031284","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

Conflicts of Interests 利益冲突

IF 0.2

Journal of International Arbitration Pub Date : 2022-06-01 DOI: 10.54648/joia2022017

C. Carrara

{"title":"Conflicts of Interests","authors":"C. Carrara","doi":"10.54648/joia2022017","DOIUrl":"https://doi.org/10.54648/joia2022017","url":null,"abstract":"The Kluwer Research comprises over 1,000 cases in the period 2010-2020. These cases do not include challenges in particular, but include vacatur and enforcement actions. Out of a total of 504 vacatur cases, in approximately eighty cases arguments related to the composition of the arbitral authority have been made. As regards enforcement, out of a total of 589 enforcement actions, in sixty-one cases these arguments have been made.\u0000The effectiveness of arbitrators’ impartiality and independence is ensured by an ex ante positive obligation of transparency, i.e., the duty to disclose any circumstances that may give rise to independence and impartiality, and an ex post sanctioning mechanism, which enables the parties to challenge an arbitrator who doesn’t comply with those requirements. Disclosure allows parties to verify the arbitrators’ compliance with the requirements of independence and impartiality. The challenge, however, remains the necessary procedure to establish the lack of such requirements. In most countries, the test of the arbitrators’ impartiality and independence is based on the criterion of justifiable doubts.\u0000Raising arguments related to conflicts of interest after the award is rendered, either in vacatur or enforcement actions, is only successful in order to block the enforcement/vacating the award in very few instances. Thus, parties should timely raise all of their objections at an early stage, rather than after the award is rendered.\u0000impartiality, independence, arbitrators, challenge, conflict of interests, disclosure, duty to disclose, justifiable doubts, party-appointed arbitrator, standards","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45870816","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 Judicial Solution to the Arbitrator’s Dilemma: Does the ‘Extension’ of the Arbitration Agreement to Non-Signatories Threaten the Enforcement of the Award? 仲裁员困境的司法解决方案：将仲裁协议“扩展”到非签署方是否会威胁裁决的执行？

IF 0.2

Journal of International Arbitration Pub Date : 2022-06-01 DOI: 10.54648/joia2022015

L. Mistelis, G. Rao

引用次数: 1

Recognition or Enforcement and Annulment of Arbitral Awards in France: An Analysis of the Kluwer Research Results 法国仲裁裁决的承认、执行与撤销——Kluwer研究成果分析

IF 0.2

Journal of International Arbitration Pub Date : 2022-06-01 DOI: 10.54648/joia2022021

I. Knoll-Tudor

{"title":"Recognition or Enforcement and Annulment of Arbitral Awards in France: An Analysis of the Kluwer Research Results","authors":"I. Knoll-Tudor","doi":"10.54648/joia2022021","DOIUrl":"https://doi.org/10.54648/joia2022021","url":null,"abstract":"The results of the Kluwer Research showed that, despite Paris being one of the most popular arbitration seats, French courts were the least likely to recognize and enforce an arbitral award, but also those with the highest number of vacated arbitral awards. The article analyses these results and offers some possible justifications for them.\u0000Concerning the enforcement and recognition procedures, the study only included reasoned decisions. The specificities of the French procedure however result in most of the decisions not being reasoned (the exequatur procedure is an ex parte procedure, only orders refusing the enforcement are reasoned) and the decision of the Court of Appeal dismissing an application to set aside an award (for awards rendered in France) has the effect of automatically enforcing the award. Therefore, analysing only reasoned decisions is not representative of the French courts’ approach. The article also analyses the grounds invoked by the claimants and their respective success rates, especially in comparison with other jurisdictions.\u0000Concerning the annulment procedures, France ranks as the country with the highest number of vacated awards. Indeed, while reviewing the number of annulment actions initiated in recent years before the Paris Court of Appeal, we concluded that the number of actions has doubled, with around 25% of successful annulment actions.\u0000As to the grounds for annulment relied upon by the claimants and their respective rates of success, the Kluwer Research revealed that the most relied upon grounds in France (authority not in accordance with the law and violation of public policy) were also the most successful ones.\u0000Offensive enforcement actions, exequatur, recognition, annulment, set-aside, France, Paris Court of Appeal, international public policy, empirical study, grounds for annulment","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47029851","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

Public Policy in International Commercial Arbitration 国际商事仲裁中的公共政策

IF 0.2

Journal of International Arbitration Pub Date : 2022-06-01 DOI: 10.54648/joia2022019

M. Sasson

引用次数: 0

A Pathology (Yet) to Be Cured? 一种有待治愈的疾病?

IF 0.2

Journal of International Arbitration Pub Date : 2022-06-01 DOI: 10.54648/joia2022016

L. Shore, Vittoria De Benedetti, Mario de Nitto Personè

{"title":"A Pathology (Yet) to Be Cured?","authors":"L. Shore, Vittoria De Benedetti, Mario de Nitto Personè","doi":"10.54648/joia2022016","DOIUrl":"https://doi.org/10.54648/joia2022016","url":null,"abstract":"Fifty years ago, Frédéric Eisemann coined the expression ‘pathological clause’ to refer to arbitration clauses that substantially deviate from the essential requirements of a model clause.\u0000However, arbitration practitioners have not yet learned their lesson; the matter of pathology is far from being outdated.\u0000Arbitration clauses may be pathological if they do not provide for mandatory referrals to arbitration proceedings, or do not meet certain other requirements to provide for a workable arbitration procedure, or contain a reference to non-existing arbitral institutions and/or arbitral rules, or provide for a proceeding administered by an arbitral institution pursuant to different institutional rules.\u0000In most instances, the competent supervisory court (or the arbitral tribunal or institution dealing with a defective clause) seeks to cure these pathologies. Arbitral tribunals and national courts generally try to ascertain whether the parties’ real intention is to arbitrate, and, if that to arbitrate is apparent, to give effect to and enforce an otherwise invalid arbitration clause.\u0000In any case, parties should not blindly rely on tribunals’ and courts’ tendency to uphold such clauses; the only safe approach is to avoid pathology.\u0000pathological/pathology, arbitration clause, hybrid (arbitration clause), asymmetric (arbitration clause) effectiveness principle, validity, enforcement, vacatur contractual autonomy","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45205842","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

Article V(1)(e) of the New York Convention: To Enforce orNot to Enforce Set Aside Arbitral Awards? 《纽约公约》第V(1)(e)条:执行还是不执行仲裁裁决?

IF 0.2

Journal of International Arbitration Pub Date : 2022-06-01 DOI: 10.54648/joia2022018

C. Baltag

引用次数: 0