Journal of International Arbitration最新文献_第9页

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

IF 0.2

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

Procedural Formalities in Arbitration: Towards a Technologically Neutral Legal Framework 仲裁中的程序程序:走向技术中立的法律框架

IF 0.2

Journal of International Arbitration Pub Date : 2021-01-01 DOI: 10.54648/joia2021002

M. Piers, Kevin Ongenae

{"title":"Procedural Formalities in Arbitration: Towards a Technologically Neutral Legal Framework","authors":"M. Piers, Kevin Ongenae","doi":"10.54648/joia2021002","DOIUrl":"https://doi.org/10.54648/joia2021002","url":null,"abstract":"This article addresses the ongoing process of digitalization in arbitration proceedings, particularly in light of the recent coronavirus disease 2019 (COVID-19) pandemic. It focuses on the different communications that occur throughout arbitration proceedings, i.e. written communication at the start and during the proceedings, oral communication at hearings, and the rendering of the arbitral award. The authors assess the past, present and future use of digital means of communication in relation to each of these instances, and analyse the extent to which the applicable legal framework (institutional rules, national laws, and the New York Convention) is actually an obstacle to digitalization. They find that the evolution towards more technologically oriented proceedings had already started, but that the COVID-19 pandemic will likely be a decisive step towards fully digital arbitration proceedings. The authors welcome that evolution, and argue that there are no overriding legal or policy arguments to hold back this trend.\u0000Arbitration, Digitalization, COVID-19, Procedure, Formalities, Technology, Institutional Rules, Communication, Request for Arbitration, Remote Hearings, Electronic Awards","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":"45886969","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: UNCITRAL Model Law and Arbitration Rules: The Arbitration Act 2005 (Amended 2011 and 2018) and the AIAC Arbitration Rules 2018, Sundra Rajoo & Thomas R. Klotzel eds, Malaysia: Sweet & Maxwell. 2019 书评:《联合国国际贸易法委员会示范法和仲裁规则:2005年仲裁法(2011年和2018年修订)和2018年国际仲裁委员会仲裁规则》，Sundra Rajoo & Thomas R. Klotzel eds，马来西亚:Sweet & Maxwell, 2019

IF 0.2

Journal of International Arbitration Pub Date : 2021-01-01 DOI: 10.54648/joia2021007

S. Lahiri

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

IF 0.2

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}

引用次数: 0

‘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?

IF 0.2

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

Vivek Krishnani, Aiswarya Murali

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

IF 0.2

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

Enforcement in Indonesia: Obtaining a Power of Attorney for Registration of the Award 印度尼西亚的强制执行：获得裁决登记授权书

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Journal of International Arbitration Pub Date : 2020-09-01 DOI: 10.54648/joia2020032

Dimitrios Katsikis, Anthony Nicholls

{"title":"Enforcement in Indonesia: Obtaining a Power of Attorney for Registration of the Award","authors":"Dimitrios Katsikis, Anthony Nicholls","doi":"10.54648/joia2020032","DOIUrl":"https://doi.org/10.54648/joia2020032","url":null,"abstract":"Indonesia is forecast to become one of the world’s top ten economies by 2030, which will lead to an increase in arbitrations with an Indonesian element. Sophisticated commercial parties and arbitration specialists alike are often unaware of a peculiarity of Indonesian arbitration law which requires that the arbitral tribunal must apply for, and obtain, registration of an arbitral award with the Indonesian courts before the award can be enforced. If a tribunal is not aware of this peculiarity, and becomes functus officio without having obtained registration, the parties risk having an award that cannot be enforced in Indonesia.\u0000In this article, we examine the registration requirement and set out steps that an arbitral tribunal must take in order to register an award with the Indonesian courts. We then consider the circumstances in which a tribunal can satisfy the registration requirement by providing parties’ counsel with a Power of Attorney, so that they can register the award on its behalf. We analyse some of the key features that the Power of Attorney should have, as well as the pitfalls parties should be aware of, drawing on aspects of Indonesian law as well as our practical experience.\u0000Indonesia, registration, power of attorney, proxy, mandate, mandator, mandatory, tribunal, legalization, notarization","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44784499","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

Unionmatex v. Turkmenistan: The Emerging Jurisprudence of Security for Costs in Investor- State Arbitration Unionmatex诉土库曼斯坦：投资者-国家仲裁中成本担保的新兴法学

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Journal of International Arbitration Pub Date : 2020-09-01 DOI: 10.54648/joia2020031

Adrian Fourie

引用次数: 0

Ascertaining the Proper Law of an Arbitration Agreement: The Artificiality of Inferring Intention When There Is None 仲裁协议适用法律的确定：无推定故意的人为性

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Journal of International Arbitration Pub Date : 2020-09-01 DOI: 10.54648/joia2020030

Darius Chan, Teo, Jim J. Yang

{"title":"Ascertaining the Proper Law of an Arbitration Agreement: The Artificiality of Inferring Intention When There Is None","authors":"Darius Chan, Teo, Jim J. Yang","doi":"10.54648/joia2020030","DOIUrl":"https://doi.org/10.54648/joia2020030","url":null,"abstract":"The common law choice of law principles for determining the proper law of an arbitration agreement previously thought to be settled by the English Court of Appeal’s decision in Sulamérica v. Enesa [2013] 1 W.L.R. 102 have now been thrown into disarray after a recent string of three judgments: starting with the Singapore Court of Appeal’s decision in BNA v. BNB [2019] S.G.C.A. 84, followed by two decisions from the English Court of Appeal in Kabab-Ji v. Kout Food Group [2020] EWCA Civ 6 and Enka Insaat Ve Sanayi A.S. v. OOO ‘Insurance Company Chubb’ [2020] EWCA Civ 574.\u0000This article undertakes a comparative analysis of English and Singapore case law and argues that the common law should take party autonomy more seriously by ascertaining whether the parties have a clear and real intent to choose a particular system of law to govern their arbitration agreement. The current reliance on presumptions or inferences of what the parties must have intended is in reality an artificial arrogation to judges and arbitrators on what ‘commercial’ sensibilities businessmen should be taken to have. In the absence of a clear and real intent, arbitrators and state signatories to the New York Convention ought to apply the law of the seat as the default choice of law rule in the New York Convention.\u0000governing law, proper law, arbitration agreement, choice of law, conflict of laws, Sulamérica, Kabab-Ji, Enka, BNA, separability, validation principle, Article V(1)(a), New York Convention.","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43071182","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

Book Review: The DIS Arbitration Rules: An Article-by-Article Commentary, Gustav Flecke- Giammarco, Christopher Boog, Siegfried H. Elsing, Peter Heckel, Anke Meier eds, Kluwer Law International Publishing. 2020. 书评：DIS仲裁规则：逐条评论，Gustav Flecke-Giammarco，Christopher Boog，Siegfried H.Elsing，Peter Heckel，Anke Meier eds，Kluwer Law International出版社。2020

IF 0.2

Journal of International Arbitration Pub Date : 2020-09-01 DOI: 10.54648/joia2020033

T. Granier, J. Grierson

引用次数: 0