Journal of International Arbitration最新文献_第7页

De-biasing Counsel: A Call for Agile Minds in Arbitration 消除偏见的法律顾问：仲裁中对敏捷思维的呼唤

IF 0.2

Journal of International Arbitration Pub Date : 2022-02-01 DOI: 10.54648/joia2022005

Alice Stocker

{"title":"De-biasing Counsel: A Call for Agile Minds in Arbitration","authors":"Alice Stocker","doi":"10.54648/joia2022005","DOIUrl":"https://doi.org/10.54648/joia2022005","url":null,"abstract":"Unconscious biases have been a hot topic for decades and have found their way into arbitration. While the decision-making process of arbitrators has been the focus of attention, there is hardly any legal literature that deals with potential biases of counsel. Psychological studies have identified a general overconfidence bias in counsel that can have a negative impact on case assessments. As a solution to this issue, a recent study of 2018 showed how to use de-biasing techniques and how this improved case assessments: analysing almost 500 law students in the United States, the study demonstrated how overconfidence and self-serving judgments of fairness could tamper with the ability to assess the value of a case when the students were required to represent a client’s interests. This effect is called ‘partisan bias’. The study displayed its effect on specific case valuation methods and demonstrated how it could be partly eliminated by a de-biasing technique called ‘consider the opposite’. Further, the study showed that individuals with a high score of a need for cognitive closure, i.e., a motivational tendency to prefer clear answers over ambiguity, were more inclined to be susceptible to partisan bias, however were equally likely to be receptive to de-biasing.\u0000International arbitration, Partisan Bias, Overconfidence, De-biasing, Decision-making, Case assessment, Settlements, Negotiation, Need for cognitive closure, Consider the opposite","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":"45492905","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

Arbitration in Derivatives Contracts 衍生品合同中的仲裁

IF 0.2

Journal of International Arbitration Pub Date : 2022-02-01 DOI: 10.54648/joia2022003

P. Leonard, H. O'Donnell

{"title":"Arbitration in Derivatives Contracts","authors":"P. Leonard, H. O'Donnell","doi":"10.54648/joia2022003","DOIUrl":"https://doi.org/10.54648/joia2022003","url":null,"abstract":"In recent years, the International Swaps and Derivatives Association (ISDA) has increasingly facilitated the use of arbitration as a means of resolving disputes arising out of derivatives transactions. Although the financial services industry is said to have traditionally preferred court-based dispute resolution, a number of factors suggest that market participants ought to consider the particular advantages of arbitration for such disputes. In particular, factors such as the ability of arbitration to mitigate enforcement risks in the absence of the mutual recognition of judgments and to deal with competing regulatory standards both in European and international derivatives suggest that arbitration should play an important role in the resolution of such disputes.\u0000This article reviews the history of arbitration in derivatives disputes and considers the recent moves by ISDA to facilitate the use of arbitration as a means of dispute resolution. It also considers the various options now available in this regard to market participants who seek to use ISDA standard form documentation, and the factors affecting the use of arbitration as a dispute resolution mechanism. It concludes that more research and data is required to monitor the use of arbitration in this area.\u0000Arbitration – arbitral rules and institutions – ISDA – Derivatives – financial services – arbitral award, recognition and enforcement – enforcement – choice 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":"49526430","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

The New Arbitration Law in Tanzania: An Appraisal of Its Salient Features and Implications for Investment Disputes Settlement 坦桑尼亚新仲裁法:评价其突出特点及其对投资争端解决的影响

IF 0.2

Journal of International Arbitration Pub Date : 2022-02-01 DOI: 10.54648/joia2022006

Saudin J. Mwakaje, Nuhu S. Mkumbukwa

{"title":"The New Arbitration Law in Tanzania: An Appraisal of Its Salient Features and Implications for Investment Disputes Settlement","authors":"Saudin J. Mwakaje, Nuhu S. Mkumbukwa","doi":"10.54648/joia2022006","DOIUrl":"https://doi.org/10.54648/joia2022006","url":null,"abstract":"Preference for arbitration as an option for dispute settlement is steadily on the rise, partly because of its perceived efficacious proceedings and enforceability. In 2020, Tanzania enacted a new legislation on arbitration with a detailed and defined framework, cascading through the entire qualifying process of arbitrators, initiating the arbitration proceedings, enforcement and recognition of foreign arbitral awards. This article analyses the corpus of the new legislation, its pertinent structural features, the gaps, and future prospects. The analysis is predicated on the ramifications of the new arbitration law for investment dispute settlements, particularly, state versus investors disputes, as envisaged under the national investment legislation. It concludes by highlighting several aspects which need to be revisited, such as the independence of arbitrators, duty to refer disputes to arbitration, and determination of arbitration costs. Further, a case is made for amendment of the existing national investment legislation in respect of dispute settlement provisions in order to create a harmonious arbitration regime in Tanzania.\u0000Tanzania arbitration law, implications to investment disputes, enforcement of foreign arbitral awards","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":"45896989","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

The Science of Witness Memory: Implications for Practice and Procedure in International Arbitration 证人记忆的科学:对国际仲裁实践和程序的启示

IF 0.2

Journal of International Arbitration Pub Date : 2021-11-23 DOI: 10.31234/osf.io/fxjm6

K. Wade, U. Cartwright-Finch

引用次数: 0

Private International Law Aspects of Arbitrator Liability: A European Perspective Post-Brexit 仲裁员责任的国际私法方面：英国脱欧后的欧洲视角

IF 0.2

Journal of International Arbitration Pub Date : 2021-11-01 DOI: 10.54648/joia2021034

Bastiaan Van Zelst, D.L. Van Besouw

{"title":"Private International Law Aspects of Arbitrator Liability: A European Perspective Post-Brexit","authors":"Bastiaan Van Zelst, D.L. Van Besouw","doi":"10.54648/joia2021034","DOIUrl":"https://doi.org/10.54648/joia2021034","url":null,"abstract":"This article investigates how various private international law (PIL) instruments relevant in the European context, post-Brexit, deal with questions of jurisdiction, applicable substantive law, and recognition and enforcement pertaining to the contractual liability of arbitrators. Based on an analysis of applicable European Union (EU) case law and the drafting history of, amongst others, the Brussels I (Recast) Regulation and its predecessors, it submits that that the exclusions included in such Regulation with regard to arbitration proceedings do not apply to the Arbitration Contract between the Parties and the Arbitrator or Arbitrators. Second, we submit that the law applicable to a claim for breach of contract by an Arbitrator must be found through the application of Rome I. Rome I provides that the law of the country where the Arbitrator that is alleged to be liable vis-à-vis (one of) the Parties has his or her habitual residence. With respect to enforceability of court judgments pertaining to arbitrator liability, we discuss and assess the Pandora’s Box that Brexit appears to have opened. This assessment leads us to conclude that, whilst the framework put in place by Brussels I (Recast) and the Lugano Convention remains largely in place, on the departure of the United Kingdom from the existing legal frameworks, enforcement and recognition of court judgments between the United Kingdom and the EU will, in the absence of a jurisdiction clause, largely shift to provisions of national law and/or bilateral treaties.\u0000Arbitration, International Arbitration, Brussels I (Recast), Rome I, Hague Convention, Lugano Convention, Brexit, Private International Law, Arbitrator, Liability","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43443847","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: Rules and Practices of International Investment Law and Arbitration, by Professor Dr Yannick Radi ed., Cambridge University Press. 2020. 书评:《国际投资法与仲裁的规则与实践》，雅尼克·拉迪教授博士著，剑桥大学出版社，2020年。

IF 0.2

Journal of International Arbitration Pub Date : 2021-11-01 DOI: 10.54648/joia2021039

Dr Maria Fanou

引用次数: 0

Enforcement of Emergency Arbitrator Decisions: Dream or Reality? The French Perspective 紧急仲裁裁决的执行：梦想还是现实？法国人的观点

IF 0.2

Journal of International Arbitration Pub Date : 2021-11-01 DOI: 10.54648/joia2021038

Maxime Chevalier

{"title":"Enforcement of Emergency Arbitrator Decisions: Dream or Reality? The French Perspective","authors":"Maxime Chevalier","doi":"10.54648/joia2021038","DOIUrl":"https://doi.org/10.54648/joia2021038","url":null,"abstract":"Emergency arbitration is a recent and significant development in the field of international arbitration. The enforcement of emergency arbitrator decisions is necessary to ensure the full efficiency of the mechanism. This subject is of great interest because the recourse by arbitration users to emergency arbitration for the issuance of interim measures is usually impacted by enforcement concerns. Thus, it is necessary to provide potential emergency arbitration users with an answer with regard to the possible enforcement of emergency arbitration awarded interim measures. This article aims to show that, contrary to popular belief, the enforcement of emergency arbitrator interim measures would be feasible in France.\u0000We will demonstrate that the emergency arbitrator should enjoy a similar status as an arbitral tribunal. Even if there exist no mechanisms for the enforcement of arbitral orders in France, interim measures could be enforced as arbitral awards. Indeed, emergency arbitrator decisions might be considered as being final and, thus, qualify as an award subject to exequatur procedure. Moreover, we will suggest providing emergency arbitration users with an alternative enforcement mechanism which consists of indirectly enforcing the emergency arbitrator decision on the grounds of breach of contract through référé emergency proceedings.\u0000Emergency arbitration, Emergency arbitrator, France, Interim measures, Order, Enforcement, Emergency award, SNPC v. Total Fina, Otor v. Carlyl, Référé","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":"15 11","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41330780","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

Efficient Arb-Med-Arb Proceedings: Should the Arbitrator also be the Mediator? 有效的仲裁程序：仲裁员是否也应该是调解员？

IF 0.2

Journal of International Arbitration Pub Date : 2021-11-01 DOI: 10.54648/joia2021035

Dorothee Ruckteschler, Anika Wendelstein

{"title":"Efficient Arb-Med-Arb Proceedings: Should the Arbitrator also be the Mediator?","authors":"Dorothee Ruckteschler, Anika Wendelstein","doi":"10.54648/joia2021035","DOIUrl":"https://doi.org/10.54648/joia2021035","url":null,"abstract":"The demand for hybrid proceedings combining elements of arbitration proceedings and mediation is growing continuously. The reason for this is the parties’ desire to make dispute resolution more efficient. A special type of hybrid proceedings are ‘arb-med-arb’ proceedings. These proceedings involve first initiating traditional arbitration proceedings. Before the taking of evidence begins, an attempt is then made to settle the dispute outside the arbitration proceedings in a separate mediation procedure. If the mediation fails, the arbitration proceedings are recommenced, and an arbitral award is issued. In the majority of arb-med-arb proceedings, a third party not involved in the arbitration proceedings is appointed as mediator. However, sometimes the parties ask the sole arbitrator or a member of the arbitral tribunal to act as mediator. This identity of the mediator and the (former and later) arbitrator raises many difficult questions, in particular, when the mediation fails. This article first analyses the pertinent most important regulations worldwide in arbitration and mediation laws, institutional arbitration, and mediation rules, and in soft law. Based on the results of this analysis, the authors develop some practical recommendations for the stakeholders in arb-med-arb proceedings.\u0000Arb-med-arb, Arbitrator, Mediator, Hybrid proceedings, Arbitration, Mediation, Same neutral, Declaration of consent, Ex parte communication, Caucusing","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48628268","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

Due Diligence in International Investment Law 国际投资法尽职调查

IF 0.2

Journal of International Arbitration Pub Date : 2021-11-01 DOI: 10.54648/joia2021033

M. Burgstaller, Giorgio Risso

{"title":"Due Diligence in International Investment Law","authors":"M. Burgstaller, Giorgio Risso","doi":"10.54648/joia2021033","DOIUrl":"https://doi.org/10.54648/joia2021033","url":null,"abstract":"The obligation to exercise due diligence – which is commonly understood as the degree of care that is legally required or that is to be reasonably expected – emerged in international law in the seventeenth century to mediate inter-State relations. Due diligence then developed throughout the nineteenth and twentieth centuries in the context of the protection of aliens. Against this background, the article analyses the obligation to exercise due diligence in international investment law. The analysis shows that due diligence plays an important role in several aspects of the protection of foreign investments. First, it is accepted that investors should act with due diligence to: (1) benefit from the standards of protection set out in investment treaties; and (2) ensure compliance with host State law. Second, host States are expected to exercise due diligence with regard to substantive standards of protection, particularly the full protection and security (FPS) standard. While investment tribunals have clearly identified the scope of investors’ and host States’ due diligence, there is no conclusive indication as to the precise requirements to comply with the obligation to exercise due diligence.\u0000Due diligence, fair and equitable treatment standard, legitimate expectations, host State law, full protection and security standard","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48985060","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 ACICA Arbitration Rules 2021: Advancing Australia’s Pro-Arbitration Culture ACICA仲裁规则2021：推进澳大利亚支持仲裁的文化

IF 0.2

Journal of International Arbitration Pub Date : 2021-11-01 DOI: 10.54648/joia2021036

L. Nottage, Rober Y. W. Tang, Julia Dreosti

{"title":"The ACICA Arbitration Rules 2021: Advancing Australia’s Pro-Arbitration Culture","authors":"L. Nottage, Rober Y. W. Tang, Julia Dreosti","doi":"10.54648/joia2021036","DOIUrl":"https://doi.org/10.54648/joia2021036","url":null,"abstract":"This article compares the new Rules of the Australian Centre for International Commercial Arbitration (ACICA) with ACICA’s 2016 Rules and those of other arbitration institutions, especially in the Asia-Pacific region. It shows how the revisions help to minimize formalization and promote efficiencies, arguably essential for arbitration’s legitimacy given that many of arbitration’s design features are traded off for an attenuated model of the rule of the law, according to a recent analysis by Singapore’s Chief Justice Sundaresh Menon. The article explains new ACICA Rules aimed at reducing costs and delays, including measures to deepen digitalization of arbitration following the Coronavirus disease 2019 (COVID- 19) pandemic and to reduce the consent-based limitations inherent in arbitration, especially for multi-party and multi-contract disputes. Other new provisions include time limits for awards, and reference to mediation, although not ultimately hybrid Arb-Med. The article also examines how the Rules balance confidentiality with transparency, including new provisions for disclosure of third-party funding. It concludes by reiterating how the 2021 ACICA Rules help meet the expectations of international arbitration users and practitioners, according to recent surveys, and link to possible further reforms to underpin Australia’s increasingly pro-arbitration culture.\u0000international commercial arbitration, Rules, Australia, Asia-Pacific, remote hearings, confidentiality, third-party funding, law reform, costs and delays","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43825734","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