The Oxford Handbook of International Arbitration最新文献

The Oxford Handbook of International Arbitration Pub Date : 2020-09-10 DOI: 10.1093/law/9780198796190.003.0003

A. Mills

{"title":"Arbitral Jurisdiction","authors":"A. Mills","doi":"10.1093/law/9780198796190.003.0003","DOIUrl":"https://doi.org/10.1093/law/9780198796190.003.0003","url":null,"abstract":"This chapter examines the concept and source of arbitral jurisdiction. In\u0000 the context of arbitration, the term ‘jurisdiction’ typically refers to\u0000 the ‘power’ or ‘authority’ of the arbitral tribunal to decide a dispute.\u0000 A decision about whether a tribunal has jurisdiction will frequently be\u0000 made by the tribunal itself, but that decision is not and cannot be a\u0000 source of its jurisdiction, and cannot be a definitive determination of\u0000 that jurisdiction, because the authority of that decision depends on the\u0000 very question under review. A degree of deference may be given to the\u0000 tribunal’s determination of these questions by national courts, but\u0000 self-evidently a tribunal may not confer authority on itself. Thus, the\u0000 ‘power’ of a tribunal comes more indirectly from two sources. First, the\u0000 cooperation of national courts, which may readily recognize and enforce\u0000 arbitral awards and may also act in support of arbitration in various\u0000 other ways. Second, the potential reputational consequences of\u0000 non-compliance with an arbitral award, which may lead a party to comply\u0000 with it voluntarily. The legal framework for arbitration applied by most\u0000 national courts is set out in the New York Convention 1958, and this\u0000 remains a key basic source of the standards which are applied to\u0000 determine when an arbitral tribunal is considered to have\u0000 jurisdiction.","PeriodicalId":448349,"journal":{"name":"The Oxford Handbook of International Arbitration","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121412391","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

International Commercial Arbitration 国际商事仲裁

The Oxford Handbook of International Arbitration Pub Date : 2020-09-10 DOI: 10.1093/law/9780198796190.003.0032

Y. Dezalay, B. Garth

引用次数: 0

Investment Treaty Arbitration 投资条约仲裁

The Oxford Handbook of International Arbitration Pub Date : 2020-09-10 DOI: 10.1093/law/9780198796190.003.0026

A. Y. Vastardis

{"title":"Investment Treaty Arbitration","authors":"A. Y. Vastardis","doi":"10.1093/law/9780198796190.003.0026","DOIUrl":"https://doi.org/10.1093/law/9780198796190.003.0026","url":null,"abstract":"This chapter challenges investment treaty arbitration at its core by\u0000 questioning the validity of insistence on special routes for access to\u0000 justice reserved to remediate the grievances of a class of privileged\u0000 investors, which can be referred to as ‘justice bubbles’. Despite the\u0000 potential of the ongoing reform initiatives to genuinely improve the\u0000 existing investment treaty arbitration model, salvaging and\u0000 strengthening these justice bubbles that serve the needs of the\u0000 privileged few sustains and even makes permanent the prioritization of\u0000 institutions of justice for foreign investors over the improvement of\u0000 local institutions that could provide justice for members across\u0000 society, including foreign investors. However, no institutional process\u0000 used or proposed for settling international investment law disputes is\u0000 perfect, and each process is ‘imperfect in different ways given the\u0000 dynamics of participation within them’. Thus, the challenge in this\u0000 chapter is directed towards the singling out of high-value investment\u0000 disputes as deserving special treatment above and beyond any\u0000 institutional options available to any other private party aggrieved by\u0000 governmental abuse. The chapter then argues that the establishment of a\u0000 permanent investment court is a short-sighted solution to deficiencies\u0000 in local access to justice, which is likely to undermine domestic legal\u0000 developments.","PeriodicalId":448349,"journal":{"name":"The Oxford Handbook of International Arbitration","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126061249","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: 5

Arbitration and Offshore Resources in Disputed Maritime Areas 仲裁与争议海域的海洋资源

The Oxford Handbook of International Arbitration Pub Date : 2020-09-10 DOI: 10.1093/law/9780198796190.003.0020

T. Morgandi

{"title":"Arbitration and Offshore Resources in Disputed Maritime Areas","authors":"T. Morgandi","doi":"10.1093/law/9780198796190.003.0020","DOIUrl":"https://doi.org/10.1093/law/9780198796190.003.0020","url":null,"abstract":"This chapter studies the role of arbitration for offshore resources in\u0000 disputed maritime areas. It is an observable fact that disputes over\u0000 maritime boundaries are mostly caused by competing desires of states to\u0000 exploit offshore natural resources, in particular oil and gas deposits.\u0000 Indeed, it is well known that the law on maritime boundaries was\u0000 developed precisely in order to allocate rights over offshore natural\u0000 resources. However, it has also long been observed that the law on\u0000 maritime boundary delimitation, as developed by international tribunals,\u0000 ostensibly pays only scant regard to this underlying basis of the\u0000 disputes at issue. Rather, the law purports to base itself on other\u0000 principles. In particular, the unilateral activities of the parties are\u0000 consistently rejected as being ‘relevant circumstances’ relevant to a\u0000 boundary delimitation. However, if one looks at what tribunals do,\u0000 instead of what they say they do, it seems that in fact the unilateral\u0000 activities of the parties concerning the exploitation of offshore\u0000 hydrocarbons play a rather larger role. Whenever tribunals have some\u0000 discretion, they invariably choose a delimitation line that gives oil\u0000 and gas deposits to those parties that have taken the initiative to\u0000 drill them unilaterally, provided that this drilling has taken place at\u0000 least within a plausible boundary of the state that issued the\u0000 concession. Moreover, tribunals are extremely reluctant to draw\u0000 boundaries over drilled deposits, thus avoiding making them shared as a\u0000 result of the delimitation exercise.","PeriodicalId":448349,"journal":{"name":"The Oxford Handbook of International Arbitration","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132006919","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 Literature 仲裁文学

The Oxford Handbook of International Arbitration Pub Date : 2020-09-10 DOI: 10.1093/law/9780198796190.003.0001

T. Schultz, N. Ridi

{"title":"Arbitration Literature","authors":"T. Schultz, N. Ridi","doi":"10.1093/law/9780198796190.003.0001","DOIUrl":"https://doi.org/10.1093/law/9780198796190.003.0001","url":null,"abstract":"This introductory chapter provides an overview of the arbitration literature.\u0000 Arbitration literature has a long history. So far, however, no attempt has\u0000 been made to examine it and its evolution systematically and with a\u0000 quantitative approach. The lack of investigation of this research question\u0000 is, in and by itself, surprising. Clearly, the literature plays a strong\u0000 role in shaping the thinking and making of international arbitration law.\u0000 Moreover, literature—and scientific literature in particular—is a privileged\u0000 conduit for the various actors in the social field of international\u0000 arbitration. The chapter then looks at scientometrics. This field was\u0000 first defined as ‘the quantitative methods of the research on the\u0000 development of science as an informational process’. On the scientometrics\u0000 market, the citation is the main currency. The rationale is that citation\u0000 counts are positively associated with subsequent impact. Thus, arbitration\u0000 literature can be measured in two ways. First, one determines which works\u0000 are the most cited, in absolute terms and over time, for two different time\u0000 windows. These are the works that likely have had the most impact on the\u0000 knowledge in and about arbitration, where this knowledge is taken as a\u0000 single, common whole. Second, one looks at what the co-citation network can\u0000 reveal about the make-up of the world of arbitration literature.","PeriodicalId":448349,"journal":{"name":"The Oxford Handbook of International Arbitration","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133179449","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 Creation of Investor–State Arbitration 投资者-国家仲裁的创立

The Oxford Handbook of International Arbitration Pub Date : 2020-09-10 DOI: 10.1093/LAW/9780198796190.003.0033

Taylor St. John

引用次数: 0

International Arbitration 国际仲裁

The Oxford Handbook of International Arbitration Pub Date : 2020-09-10 DOI: 10.1093/law/9780198796190.003.0022

Hélène Ruiz Fabri, Edoardo Stoppioni

引用次数: 0

Human Rights and International Investment Arbitration 人权与国际投资仲裁

The Oxford Handbook of International Arbitration Pub Date : 2020-09-10 DOI: 10.1093/law/9780198796190.003.0006

U. Kriebaum

{"title":"Human Rights and International Investment Arbitration","authors":"U. Kriebaum","doi":"10.1093/law/9780198796190.003.0006","DOIUrl":"https://doi.org/10.1093/law/9780198796190.003.0006","url":null,"abstract":"This chapter assesses the role of human rights in international\u0000 investment arbitration. The treatment of human rights issues by\u0000 investment tribunals has received increased attention in recent years,\u0000 especially from the academic world. This is particularly so because\u0000 tribunals have adopted varying approaches when confronted with human\u0000 rights-based arguments. Some have responded in a negative way, declining\u0000 to exercise jurisdiction when human rights were concerned. Others\u0000 declined to discuss human rights arguments, noting that investment\u0000 protection provisions were more favourable to investors than human\u0000 rights law. Others applied human rights law where it composed part of\u0000 the applicable law by virtue of the host State being a party to a human\u0000 rights treaty. And some, when interpreting investment protection\u0000 treaties, drew inspiration from approaches used by human rights courts,\u0000 despite the decisive human rights treaty not being in force in the host\u0000 state in the case at hand. The chapter then reflects upon the\u0000 requirements for the application of human rights law in investment\u0000 disputes.","PeriodicalId":448349,"journal":{"name":"The Oxford Handbook of International Arbitration","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127070072","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

International Arbitration 国际仲裁

The Oxford Handbook of International Arbitration Pub Date : 2020-09-10 DOI: 10.1093/law/9780198796190.003.0021

Horatia Muir Watt

{"title":"International Arbitration","authors":"Horatia Muir Watt","doi":"10.1093/law/9780198796190.003.0021","DOIUrl":"https://doi.org/10.1093/law/9780198796190.003.0021","url":null,"abstract":"This chapter discusses international arbitration as a crucial part of the\u0000 legal framework that has progressively enabled the contemporary\u0000 neo-liberal orientation of global governance. As such, it presents the\u0000 perspective of critical private international law. If the latter\u0000 discipline constitutes a significant viewpoint in this respect, it is\u0000 precisely because it provided the foundational legal tools and discourse\u0000 by means of which international arbitration attained such astounding\u0000 success as a cornerstone of cross-border trade and investment regimes.\u0000 The specific contention here is that in sanctifying freedom of contract\u0000 to an unprecedented degree, including unrestricted party choice of law\u0000 and forum, it has deactivated the regulatory constraints to which\u0000 private actors are subject in a domestic setting and, involuntarily\u0000 thereby, sealed the ‘loss of control’ by nation-states of various\u0000 crucial aspects of the global economy. The chapter then explores the\u0000 grievances generally addressed to arbitration as emblematic of the\u0000 privatization of global governance, understood alternatively as a\u0000 confiscation of power in the hands of a happy few individuals or as the\u0000 subordination of public concerns to private interests.","PeriodicalId":448349,"journal":{"name":"The Oxford Handbook of International Arbitration","volume":"240 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122716945","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

Appointment of Arbitrators 委任仲裁员

The Oxford Handbook of International Arbitration Pub Date : 2020-09-10 DOI: 10.1093/law/9780198796190.003.0004

J. Paulsson

{"title":"Appointment of Arbitrators","authors":"J. Paulsson","doi":"10.1093/law/9780198796190.003.0004","DOIUrl":"https://doi.org/10.1093/law/9780198796190.003.0004","url":null,"abstract":"This chapter details the process of the appointment of arbitrators. In\u0000 modern usage, arbitration is binding, and anything else created by\u0000 agreement is some form or another of what might generically be referred\u0000 to as third-party assisted negotiation. This explains why arbitration\u0000 contemplates an odd number of arbitrators; indeed, laws regulating\u0000 arbitration frequently explicitly require it. It follows that the ‘odd’\u0000 arbitrator, i.e. the one whose voice will be decisive in the event of\u0000 failure of unanimity, must be appointed jointly, or by a neutral\u0000 mechanism agreed by the arbitrants. That is simple enough when the\u0000 process calls for a sole arbitrator. However, if the tribunal is to be\u0000 composed of three arbitrators, it is often agreed that each side may\u0000 select anyone it wishes provided they satisfy minimal criteria—such as\u0000 professional qualifications and the readiness to declare themselves\u0000 independent and impartial. The chapter then considers the different\u0000 appointment methods. It specifically evaluates the practice of\u0000 unilateral appointments, which introduces an adversarial element into\u0000 the very deliberation of the arbitral tribunal.","PeriodicalId":448349,"journal":{"name":"The Oxford Handbook of International Arbitration","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131816345","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