Journal of International Arbitration最新文献_第8页

UN and EU Sanctions Versus US Sanctions: Two Different Yardsticks Commentary on the Decision of the Paris Court of Appeal (International Commercial Chamber) (5th Pole, Chamber 16) of 3 June 2020, No. 21/2020 联合国和欧盟制裁与美国制裁:两种不同的衡量标准——评巴黎上诉法院(国际商事法庭)(第16分庭第五极)2020年6月3日第21/2020号判决

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Journal of International Arbitration Pub Date : 2021-01-01 DOI: 10.54648/joia2021004

Joséphine Hage Chahine

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Arbitration’s Blade: International Arbitration and the Rule of Law 《仲裁之刃:国际仲裁与法治》

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Journal of International Arbitration Pub Date : 2021-01-01 DOI: 10.54648/joia2021001

Sundaresh Menon

{"title":"Arbitration’s Blade: International Arbitration and the Rule of Law","authors":"Sundaresh Menon","doi":"10.54648/joia2021001","DOIUrl":"https://doi.org/10.54648/joia2021001","url":null,"abstract":"The legitimacy of a system of dispute resolution depends intrinsically on the trust and confidence of its users in its decision-making processes, and that in turn rests on the general adherence of those processes to the values and principles that constitute the rule of law. While international arbitration has long been a close partner of the courts in sustaining the rule of law, some of arbitration’s key features and practices – such as its consent-based limitations, its predisposition toward confidentiality, its longstanding practice of permitting parties to unilaterally appoint arbitrators, and its philosophy that parties have no right to a right answer – mean that arbitration supports an attenuated model of the rule of law. That is largely the result of conscious decisions to forgo certain rule of law values in order to realize other goals. But the problem of rising costs and delays, underpinned by arbitration’s growing procedural rigidity and lack of agility, exacts a heavy price on arbitration’s users and their confidence in arbitration, without obvious returns. We must be cognizant of arbitration’s sacrifice in terms of rule of law values when seeking to advance other objectives, and regularly reflect on whether those gains are still worth their cost.\u0000International arbitration, Rule of law, Consent, Arbitrability, Confidentiality, Multiparty disputes, Party appointment of arbitrators, Accessibility, Costs, Delays","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44422674","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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Enforceability of Awards Vitiated by Illegality and Fair Hearing: A Review from a Nigerian Law Perspective of PID v. FRN 非法损害裁决的可执行性与公平听证:从尼日利亚法律视角审视PID诉FRN案

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Journal of International Arbitration Pub Date : 2021-01-01 DOI: 10.54648/joia2021005

Bankole Sodipo

{"title":"Enforceability of Awards Vitiated by Illegality and Fair Hearing: A Review from a Nigerian Law Perspective of PID v. FRN","authors":"Bankole Sodipo","doi":"10.54648/joia2021005","DOIUrl":"https://doi.org/10.54648/joia2021005","url":null,"abstract":"This article reviews, from a Nigerian law perspective, the judgment of the English court and the majority arbitral award in Process & Industrial Developments Ltd. (PID) v. The Federal Republic of Nigeria (FRN). The arbitral tribunal awarded record-breaking damages, totalling over USD 9 billion, inclusive of interest. The award relates to an alleged breach by the FRN of a Gas Supply and Processing Agreement (GSPA) to a facility that was never constructed by PID. The signatory of the GSPA, PID, was a British Virgin Island corporation. Although PID had incorporated a local PID Corporation in Nigeria (PIDNigeria), it never executed the GSPA. This article is divided into three sections. Section 1 features the introduction and a general commentary. Section 2 focuses on the second leg of the FRN’s objection: ‘Whether or not the Claimant failed to comply with the provisions of section 54 of the Company and Allied Matters Act (CAMA) 1990 as alleged, and if so whether the GSPA is void, and/or affected by illegality, as a result’. This article does not discuss the first leg of the FRN’s objection, namely, the capacity of theMinistry of Petroleum Resources to contract on behalf of the FRN. Section 3 examines the consequences of the order issued by the Federal High Court of Nigeria (FHC) on FRN’s application, restraining the parties from proceeding with the arbitral hearing, which the tribunal ignored. It considers whether the order can bind members of the tribunal who were not parties to the FHCaction; if it was proper for the tribunal to ignore the order; and the consequences of the order on the FRN. It analyses whether the principle of fair hearing was breached when the tribunal reached a determination on the issue of the seat of arbitration without taking further submissions from the parties.\u0000Fair Hearing, Arbitral Award, Tribunal, Arbitration, Expert Opinion, Foreign Companies, Illegality, Employment, Jurisdiction, Enforcement","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43807770","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

Rand Investments v. Republic of Serbia: Transparency and the Limits of Consent 兰德投资诉塞尔维亚共和国案:透明度和同意的限制

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Journal of International Arbitration Pub Date : 2021-01-01 DOI: 10.54648/joia2021006

Arpan Banerjee, Ashwin Murthy

{"title":"Rand Investments v. Republic of Serbia: Transparency and the Limits of Consent","authors":"Arpan Banerjee, Ashwin Murthy","doi":"10.54648/joia2021006","DOIUrl":"https://doi.org/10.54648/joia2021006","url":null,"abstract":"International investment law has consistently grappled with the issue of transparency. While the need for increased transparency in the practice of investment tribunals is generally recognized in principle, in practice the application of transparency norms often raises contentious issues. One common issue is the appropriateness of transparent proceedings where the Bilateral Investment Treaty (BIT) governing the dispute is silent on the matter. A further, more vexed question arises when claimants proceed under multiple BITs with disparate transparency obligations. This situation arose in Rand Investments v. Republic of Serbia, where the claimants instituted an arbitration under both the Canada-Serbia and the Cyprus- Serbia BITs. Noting that the Cyprus-Serbia BIT was silent on the question of transparency, the Majority held that the transparency provisions of the Canada-Serbia BIT could be applied to the entire arbitration on grounds of procedural efficiency. However, the respondent’s arbitrator dissented, finding that the Majority’s approach violated Serbia’s consent and sovereignty. Upon examining the dichotomous approaches adopted by the Majority and the Dissenting Arbitrator, this case comment offers an insight into the potential implications of the case on future investment arbitrations involving multiple BITs with disparate transparency obligations.\u0000investment arbitration, dissenting opinion, transparency, Lotus principle, Effet Utile, procedural efficiency, Eurogas v Slovakia, duty of arbitrator, state consent, residual powers of the tribunal, confidentiality.","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49034579","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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‘Minority Awards’ in India: A Low-Hanging Fruit for Judicial Interference? 印度的“少数族裔奖”:司法干预的唾手可得的果实?

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Journal of International Arbitration Pub Date : 2020-12-01 DOI: 10.54648/joia2020036

Vivek Krishnani, Aiswarya Murali

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Book Review: UNCITRAL Model Law on International Commercial Arbitration: A Commentary, Ilias Bantekas, Pietro Ortolani, Shahla Ali, Manuel A. Gomez and Michael Polkinghorne eds, 1st edition (2020). Cambridge University Press, March 2020 书评：《联合国贸易法委员会国际商事仲裁示范法：评注》，伊利亚斯·班特卡斯、彼得罗·奥尔托拉尼、沙赫拉·阿里、曼努埃尔·戈麦斯和迈克尔·波尔金霍恩主编，2020年第1版。剑桥大学出版社，2020年3月

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Journal of International Arbitration Pub Date : 2020-12-01 DOI: 10.54648/joia2020039

G. Alvarez

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The Termination Agreement of Intra-EU Bilateral Investment Treaties: A Spaghetti-Bowl with Fewer Ingredients and More Questions 欧盟内部双边投资协定的终止协议:配料少问题多的意大利面碗

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Journal of International Arbitration Pub Date : 2020-12-01 DOI: 10.54648/joia2020038

Gustavo Guarín Duque

{"title":"The Termination Agreement of Intra-EU Bilateral Investment Treaties: A Spaghetti-Bowl with Fewer Ingredients and More Questions","authors":"Gustavo Guarín Duque","doi":"10.54648/joia2020038","DOIUrl":"https://doi.org/10.54648/joia2020038","url":null,"abstract":"This article deals with the issue of the implementation of the Achmea judgment of the Court of Justice of the European Union (CJEU) through the Termination Agreement of Bilateral Investment Treaties (‘Termination Agreement’, TA) between some Member States of the European Union (EU). The article focuses on the analysis of the TA provisions that terminate Bilateral Investment Treaties (‘intra-EU BITs’) and investor-State dispute settlement (ISDS) among EU Members. It also describes TA provisions regulating concluded, new, and pending arbitration proceedings having as a reference the date the CJEU issued the Achmea judgment. Also, it examines how the TA regulates pending arbitration proceedings and discusses how TA Members are allowed to resort to transitional measures to resolve their dispute, throughout an amicable resolution proceeding, if they fulfil some conditions. Further, the article analyses some systemic issues of the TA, some related to the EU investment protection regime, others regarding the legal implications for intra-EU BIT provisions for EU Member States which did not sign the TA. Further, the article examines some possible issues related to the legal nature of the TA under international law and EU law.","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46159226","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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Per arbitrum ad astra

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Journal of International Arbitration Pub Date : 2020-12-01 DOI: 10.54648/joia2020035

Jan Frohloff

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Transnational Coordination of Setting Aside and Enforcement of Arbitral Awards – A New Treaty and Approach to Reconciling the Choice of Remedies Concept, the Judgment Route, and the Approaches to Enforcing Awards Set Aside? 仲裁裁决撤销与执行的跨国协调——调解救济选择概念、判决路径和仲裁裁决执行方式的新条约与新途径?

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Journal of International Arbitration Pub Date : 2020-12-01 DOI: 10.54648/joia2020034

J. Landbrecht, Andreas R. Wehowsky

{"title":"Transnational Coordination of Setting Aside and Enforcement of Arbitral Awards – A New Treaty and Approach to Reconciling the Choice of Remedies Concept, the Judgment Route, and the Approaches to Enforcing Awards Set Aside?","authors":"J. Landbrecht, Andreas R. Wehowsky","doi":"10.54648/joia2020034","DOIUrl":"https://doi.org/10.54648/joia2020034","url":null,"abstract":"The rendering of a final arbitral award can be the starting signal for a multiplicity of state court proceedings. Not all of those will be illegitimate, for instance if an award creditor needs to commence several enforcement proceedings in order to enforce the whole award. More critical, however, and more likely to invite abuse, is the relationship of setting aside and enforcement. Where an award debtor fails to request that an award be set aside, or fails to raise grounds for setting aside, or loses setting aside proceedings, should this award debtor be allowed to rely on those very same grounds again in subsequent enforcement proceedings? Or in turn, if the award is set aside, should the award creditor be allowed to enforce it? All this raises questions of how to coordinate setting aside and enforcement. While coordination mechanisms exist under domestic law, it is submitted that coordination at the transnational level leaves much to be desired. We will therefore take critical inventory of the current level of coordination at the domestic and the New York Convention level, assessing its respective strengths and weaknesses, also in light of well-known doctrines such as the choice of remedies concept and the judgment route. We will then propose wording for a new international treaty, complementing the New York Convention, to improve coordination of setting aside and enforcement and discuss the feasibility of such a project.","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47257134","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

Arbitrability of Disputes Under Iran’s Bilateral Investment Treaties: Article 139 of the Iranian Constitution Reconsidered 伊朗双边投资条约下争端的可仲裁性:对伊朗宪法第139条的重新考虑

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Journal of International Arbitration Pub Date : 2020-12-01 DOI: 10.54648/joia2020037

Nima Nasrollahi Shahri, M. Narimani, Navid Sato Rahbar

{"title":"Arbitrability of Disputes Under Iran’s Bilateral Investment Treaties: Article 139 of the Iranian Constitution Reconsidered","authors":"Nima Nasrollahi Shahri, M. Narimani, Navid Sato Rahbar","doi":"10.54648/joia2020037","DOIUrl":"https://doi.org/10.54648/joia2020037","url":null,"abstract":"This article intends to investigate a major set-back to arbitration under Iranian law, i.e. the requirement of receiving an authorization from the Iran Council of Ministers and/or Parliament to refer disputes relating to public and state-owned assets to arbitration. This requirement is enshrined in Article 139 of Iranian Constitution (‘Article 139’).\u0000The article examines this provision through the prism of arbitrability focusing on treaty-based investment arbitration. To this end, the existing practice and court precedence pertaining to Article 139 are studied and critically analysed. In particular, the implications of this requirement on the jurisdiction of arbitral tribunals and enforcement of awards are considered in depth in the light of the wording of bilateral investment treaties (BITs) concluded between the Islamic Republic of Iran and other countries.\u0000Overall, we conclude, that Article 139 is not as serious a problem in BIT arbitration as it may be in commercial arbitration, especially as far as enforcement of awards is concerned. This has to do, partly, with the wording of Iran’s BITs, the risk of state responsibility for nonenforcement of awards in investment arbitration, and, of course, the possibility to enforce arbitral investment awards outside of Iran.","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45396636","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