Journal of International Arbitration最新文献_第6页

An Empirical Study on Recognition and Enforcement of Foreign, Hong Kong, Macau, and Taiwan Arbitral Awards in Mainland China 中国大陆对外国、香港、澳门和台湾仲裁裁决承认与执行的实证研究

IF 0.2

Journal of International Arbitration Pub Date : 2022-06-01 DOI: 10.54648/joia2022022

Arthur Dong, Alex Yuan

引用次数: 0

Latin America Isn’t ‘Going South’: A Qualitative Sampling Analysis 拉丁美洲没有“走向南方”:一项定性抽样分析

IF 0.2

Journal of International Arbitration Pub Date : 2022-06-01 DOI: 10.54648/joia2022020

E. Mereminskaya

{"title":"Latin America Isn’t ‘Going South’: A Qualitative Sampling Analysis","authors":"E. Mereminskaya","doi":"10.54648/joia2022020","DOIUrl":"https://doi.org/10.54648/joia2022020","url":null,"abstract":"This article analyses a qualitative sample of recent judicial decisions from Argentina, Colombia, Costa Rica, Chile, the Dominican Republic, Mexico and Peru. Almost all decisions in the sample show ordinary courts’ deference towards arbitration. As long as the courts operate within the framework established by the UNCITRAL Model Law or the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, arbitral awards enjoy a high level of autonomy and protection against unjustified attacks. This allows for conclusion that Latin America isn’t ‘Going South’ on its path into global arbitration realm.\u0000At the same time, in almost all jurisdictions included in the sample, Constitutional courts and Tribunals and constitutional actions for protection of fundamental rights play an extremely – indeed excessively – relevant role. Admittedly, these constitutional actions have been mainly unsuccessful and have not led to amendments of arbitral awards. Nonetheless, its sole availability generates legal uncertainty and undermines the reliability of arbitration as a mechanism of dispute resolution. It seems to be the last hurdle that Latin American countries will have to overcome before they are considered safe and appealing seats for international arbitration.\u0000Arbitration, Latin America, setting aside, recognition and enforcement, amparo, constitutionalization of arbitration","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":"44621646","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

Non-recognition of Dissenting Opinions in CAS as a Controversial and Unresolved Matter 中国科学院不承认异议是一个有争议和未解决的问题

IF 0.2

Journal of International Arbitration Pub Date : 2022-03-01 DOI: 10.54648/joia2022010

A. Goryacheva, N. Kisliakova

{"title":"Non-recognition of Dissenting Opinions in CAS as a Controversial and Unresolved Matter","authors":"A. Goryacheva, N. Kisliakova","doi":"10.54648/joia2022010","DOIUrl":"https://doi.org/10.54648/joia2022010","url":null,"abstract":"In this article the authors cover the problem of expressly established non-recognition of dissenting opinions (separate opinions) in the Court of Arbitration for Sport (CAS) being uncommon for arbitration institutes. In particular, the authors analyse approaches to dissenting opinions in various national legal systems and arbitration institutes (as well as other dispute resolution bodies) which mainly allow dissenting opinions (as described below).\u0000The main focus and goal of this article is to explore possible considerations that might have led to non-recognition of dissenting opinions in CAS proceedings and whether this is common in arbitration and international justice. Having researched this question, the authors conclude that the origins of such a substantive influence on the existing regulation could be: (1) the CAS’s precedent role; and (2) the influence of Swiss law as lex arbitri. The authors also conduct substantial analysis of existing views, asking whether the lack of dissenting opinion is a positive or a negative feature and conclude that the dissenting opinion is still very controversial regarding its impact.\u0000The chosen topic is important because the approach of various dispute resolution bodies seems not to be unanimous and there is no global tendency in this respect. The topic is especially timely, considering the recent decision of a Frankfurt Court of Appeal which refused to enforce an International Chamber of Commerce (ICC) award due (among other reasons) to the existing dissent which in the opinion of the court violated public policy.\u0000dissenting opinions, separate opinions, concurring opinions, arbitral awards, the Court of Arbitration for Sport (CAS), sports arbitration, international arbitration, decision, award, alternative dispute resolution, arbitrators, deliberation, joint or individual opinions","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42939739","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

W(h)ither Institutional Terms of Reference? 机构职权范围？

IF 0.2

Journal of International Arbitration Pub Date : 2022-03-01 DOI: 10.54648/joia2022007

V. Sc

{"title":"W(h)ither Institutional Terms of Reference?","authors":"V. Sc","doi":"10.54648/joia2022007","DOIUrl":"https://doi.org/10.54648/joia2022007","url":null,"abstract":"Although Terms of Reference (‘ToR’) have been a longstanding and distinctive feature of the International Chamber of Commerce (ICC) Rules of Arbitration for almost a century, their continuing relevance and necessity warrant scrutiny, considering the radical evolution of international arbitration in recent years. The introduction of sophisticated procedural tools and frameworks, together with most states and courts exhibiting ‘pro-arbitration’ attitudes, lead one to question whether ToR remain a necessary procedural tool. In answering this question, the article first assesses the historical context in which the ToR were introduced to serve as a submission agreement and questions whether ToR continue to serve their historical role. The article thereafter closely scrutinizes the ToR’s current features and functions and considers whether the ToR have outlived their usefulness by analysing whether they are needed to fulfil those functions. The fact that ToR are no longer required as necessary evidence of consent and/ or to assist in the enforceability of an award, together with the advent of new procedural tools and practices, have rendered the ToR all but superfluous in today’s context. The article proposes that the ToR’s mandatory nature be dispensed with in the interest of efficiency, making way for dynamic procedural alternatives.\u0000International Arbitration, Terms of Reference, ICC, Arbitration Procedure","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42179725","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 Case Note on the UK Supreme Court’s Recent Decision in General Dynamics v. Libya: Hard Cases (Don’t Always) Make Bad Law 英国最高法院最近对通用动力诉利比亚案的判决:棘手的案件(并不总是)产生糟糕的法律

IF 0.2

Journal of International Arbitration Pub Date : 2022-03-01 DOI: 10.54648/joia2022012

Michael Howe

引用次数: 0

Noises Off: Towards Greater Consistency in International Arbitration Awards 喧嚣：国际仲裁裁决的更大一致性

IF 0.2

Journal of International Arbitration Pub Date : 2022-03-01 DOI: 10.54648/joia2022009

L. Greenwood, Damien Charlotin, Leonor Díaz-Córdova

引用次数: 0

The Arbitrability of Corporate Disputes After Fulham Football Club V. Richards: A Decade On 富勒姆足球俱乐部诉理查兹案后企业纠纷的可仲裁性：十年来

IF 0.2

Journal of International Arbitration Pub Date : 2022-03-01 DOI: 10.54648/joia2022011

B. Kasolowsky, Roopa Mathews

引用次数: 0

A Requirement, A Factor, or A Figure of Speech? Role of Prejudice When Challenging Awards Under the Model Law 一个要求，一个因素，还是一种修辞？在示范法下质疑裁决时的偏见作用

IF 0.2

Journal of International Arbitration Pub Date : 2022-03-01 DOI: 10.54648/joia2022008

Darius Chan, Zhi Jia Koh

{"title":"A Requirement, A Factor, or A Figure of Speech? Role of Prejudice When Challenging Awards Under the Model Law","authors":"Darius Chan, Zhi Jia Koh","doi":"10.54648/joia2022008","DOIUrl":"https://doi.org/10.54648/joia2022008","url":null,"abstract":"Both parties and courts routinely invoke the term ‘prejudice’ in applications to set aside an arbitral award or refuse its enforcement. This suggests that the use of the term is more than just a figure of speech. It is generally understood that prejudice, in the sense of impact or effect on the outcome of the arbitration, is relevant for procedural challenges but not jurisdictional challenges. However, questions remain as to whether prejudice is legally relevant for challenges that are neither strictly procedural or jurisdictional in nature, whether prejudice is relevant as a factor for consideration or as a legal requirement when challenging an award, and the meaning of prejudice. This article shows that the usage of the term ‘prejudice’ in case law is inconsistent and far from straightforward. This article attempts to elucidate a clear and structured way of understanding the role prejudice plays for each ground for challenging an award under the Model Law.\u0000Model Law, Article 34, Article 36, Setting Aside, Refusing Enforcement, Procedural Challenge, Jurisdictional Challenge, Residual Discretion, Materiality, Prejudice, Causative Link","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48917689","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 Lost Precedents of Arbitration 失去的仲裁先例

IF 0.2

Journal of International Arbitration Pub Date : 2022-02-01 DOI: 10.54648/joia2022002

C. Ford

{"title":"The Lost Precedents of Arbitration","authors":"C. Ford","doi":"10.54648/joia2022002","DOIUrl":"https://doi.org/10.54648/joia2022002","url":null,"abstract":"Concerns have been expressed that commercial common law is not developing as it should due to disputes being resolved by confidential international commercial arbitration where the majority of awards are not published, and the resultant lack of precedents. This has contributed to questions of the legitimacy of international commercial arbitration and whether the rule of law is being undermined by the non-publication of awards or by the diversion of disputes to arbitration rather than litigation. This article examines the meaning of precedents in this context and the approximate number being ‘lost’ to international commercial arbitration compared to those made in authoritative common law superior courts of record. It suggests that the number of awards of precedential value (APV) is small compared to the volume of commercial judgments of those courts, and that the perceived loss of precedents does not support either publication of awards nor determination of disputes by courts rather than by tribunals. Precedent might instead be enhanced by a wider right of appeal from awards and by publication of the appeal decisions.\u0000precedent, precedential value, award publication, arbitration appeals, law development, settlement pressures, litigation vs arbitration, court reporting, Lindley principles, rule of law","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47783664","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

On Route to Climate Justice: The Greta Effect on International Commercial Arbitration 气候正义之路:格蕾塔对国际商事仲裁的影响

IF 0.2

Journal of International Arbitration Pub Date : 2022-02-01 DOI: 10.54648/joia2022004

Lucia Bíziková

{"title":"On Route to Climate Justice: The Greta Effect on International Commercial Arbitration","authors":"Lucia Bíziková","doi":"10.54648/joia2022004","DOIUrl":"https://doi.org/10.54648/joia2022004","url":null,"abstract":"Climate change is the greatest global challenge that humankind has ever faced. It has changed the way in which communities, governments and businesses interact with each other, how they contract one with another and what legal disputes they face. National and international legal frameworks currently in place rarely provide the necessary mechanisms to resolve new kinds of disputes that have emerged and as a result, important gaps remain.\u0000International commercial arbitration is uniquely placed to respond to the transboundary nature of climate change. Its inherent flexibility, innovativeness, ability to deal with complex, cross-border issues and the possibility to choose a neutral adjudicator according to his/her expertise give commercial arbitration an important advantage over court litigation. However, some of its characteristics that are seen as welcome and desired in different contexts create important challenges for achieving climate justice. Therefore, innovation in this area will be necessary if commercial arbitration is to become an attractive option for resolving climate change-related disputes between businesses. The arbitration community should try to find constructive ways in which commercial arbitration can innovate itself so that it can complement other methods of dispute resolution traditionally used for climate change disputes.\u0000climate change, climate justice, ESG, international commercial arbitration, private finance, Paris Agreement, arbitration clause, expertise, transparency, Campaign for Greener Arbitrations, Chancery Lane Project, COP 26","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44722876","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