bluuebunny/crossref_metadata_2025 huggingface dataset:
Arbitration Clauses in a Chinese Context
Authors: Yuen Peter
Published: March 2022

This article looks at some of the key issues which arise when drafting arbitration agreements in the context of commercial and M&A transactions, with a focus on China-related transactions. The article highlights and examines the key considerations to be taken into account when negotiating and drafting the arbitration agreement. These include the scope of the arbitration agreement, the seat of the arbitration, the governing law of the arbitration agreement, the process for choosing the arbitrator(s), the choice of institutional or ad hoc arbitration, and the choice of language for the arbitration. The author then further considers other issues which may impact upon the drafting of arbitration agreements, such as disputes involving multiple parties, sole option clauses, expedited proceedings and interim relief.
Arbitration in the Arab World: An Interview with Professor Ahmed Sadek El–Kosheri
Authors: Darwazeh Nadia , El-Kosheri Ahmed Sadek
Published: March 2022

In this article, the Journal’s Guest Editor interviews Professor El–Kosheri. In his remarks, Professor El–Kosheri discusses the common features and differences of arbitration in the various countries that constitute the Arab World. He also addresses the ways to increase the participation of Arab arbitrators and comments on the emergence of a new generation of Arab arbitration practitioners.
Fixing a Hole Where the Rain Gets In: New Legal Framework in Cuba for Interim Measures of Protection in Support of Arbitration
Authors: San Miguel Giralt Johannes
Published: March 2022

Interim measures are frequently requested by international commercial arbitration practitioners, though they raise issues as to how to protect legitimate expectations of the parties involved. In 2007, the Cuban Council of State approved two statutes referring, among others, to the proceeding by which interim measures of protection can be granted in support of arbitration. This contribution considers the key developments, as well as the shortcomings, of these statutes. The developments to consider are the express permission to request and powers to grant these measures, the introduction of a legal principle of court assistance to arbitration, and the legal adoption of the UNCITRAL principles in this regard, the extension of interim protection to the proceedings as well as to the evidence, and the option to request and grant interim measures inaudita altera parte. On the other hand, the most important gaps in Cuban law are linked to the omission of any provision on the right of the arbitral parties to modify the entire interim measures legal framework, the exclusion of ad hoc proceedings, the lack of an accurate test for legal competence criteria, etc. For Cuba, improvement to this legal setting is vital to increase legal certainty and the strength of economic transactions between Cuban and foreign enterprises.
U.S. Discovery and Foreign Private Arbitration: The Foreign Lawyer’s Perspective
Authors: Illmer Martin , Steinbrück Ben
Published: March 2022

For many years U.S. case law has effectively ruled out judicial assistance in the taking of evidence for foreign private arbitration according to 28 U.S.C. section 1782. In 2004, however, the U.S. Supreme Court ruled that section 1782 applies to all foreign and international tribunals if they act as adjudicatory bodies. In the wake of this decision two district courts granted discovery orders in aid of foreign arbitration proceedings. After these judgments concerns were raised in the United States that the application of section 1782 to foreign private arbitration would lead to a procedural disparity between U.S. parties and non–U.S. parties, since for U.S. parties the access to information and evidence in foreign countries is usually much more limited than in the United States. This article demonstrates that these fears are unfounded. It shows that a flexible and well–balanced application of section 1782 to private international arbitration in line with the U.S. Supreme Court’s interpretation and strong policy considerations does not affect the discovery dynamics of international arbitration. To the contrary, it is the only mechanism to grant access to evidence located in the United States, thus ensuring the procedural equality in the taking of evidence in international arbitration.
Arbitration and Crime
Authors: PaviÇ Vladimir , Hiber Dragor
Published: March 2022

Arbitration is usually regarded as a domain exclusively reserved for private law. Inevitably, however, certain criminal matters and allegations might creep into arbitral proceedings. The dispute itself could be fictitious, a screen for money laundering, or the underlying purpose of alleged consultancy might be bribery. Testimony or expertise offered before the tribunal might be false. In such cases, arbitrators can either address the criminal matters or turn a blind eye to them. Immediately, there is a dilemma whether the arbitrator?s duty to report, if any,overrides the principle of confidentiality of arbitral proceedings. It is submitted that arbitrators are a part of the judicial system and they fail to qualify for any privilege exception. When deciding issues of bribery, however, they are still faced with difficult issues of burden of proof and law applicable to illegality. The task of deciding on the merits becomes particularly difficult if they do not take the jurisdictional way to terminate the proceedings. In such a case, it might prove fairly difficult to avoid unjust solutions. Finally, false testimony may undermine the very foundation on which an award is based, yet it is not always clear which procedural mechanisms should be used to rectify such deficiency. This difficult dilemma is, however, for legislators and judiciary, rather than for arbitrators.
The Tribunal in Malaysian Historical Salvors v. Malaysia Adopts a Restrictive Interpretation of the Term “Investment”
Authors: Andreeva Yulia
Published: March 2022

The absence of a definition of “investment” in the ICSID Convention has led several arbitral tribunals to develop a narrow reading of this term. The most recent notable example of such conservative interpretation is a decision of the ICSID tribunal in Malaysian Historical Salvors (MHS) v. Malaysia. In that case, the tribunal decided that MHS’s contract with Malaysia to undertake complex salvage operations did not rise to the level of an investment because, among other things, the contract did not significantly contribute to Malaysia’s economic development. MHS’s four years of work also failed to reach the necessary level of risk and duration. This decision signifies a worrying trend in international jurisprudence to interpret the notion of investment restrictively.It remains to be seen whether an ad hoc annulment committee, which was constituted at the claimant’s request on October 30, 2007, will support the tribunal’s interpretation.
Watch Out and Act! Recent Case Law on Due Process in Light of Austrian Law and the 1958 New York Convention
Authors: Steindl Barbara
Published: March 2022

Two months after the fiftieth anniversary of the New York Convention, the concept of due process is more in vogue than ever. Arbitral tribunals (sometimes at the request of the parties) restrict the proceedings on a strict time and cost management basis. However, in formulating the procedural timetable, both the tribunal and the parties should have regard to the ultimate aim of the proceedings. This article reports on recent case law of the Austrian Supreme Court dealing with elements of due process that arose in enforcement proceedings under the New York Convention as well as in setting aside proceedings concerning foreign arbitral awards in the Austrian courts and illustrates comparisons with the jurisprudence of other national courts. The article discusses the main features of due process under the 1895 Civil Procedure Code and contrasts it with the 2006 Civil Procedure Code, highlighting that case law rendered under the 1895 Civil Procedure Code still remains relevant.
Party Autonomy in International Commercial Arbitration: Popular Fallacy or Proven Fact?
Authors: Louise Livingstone Mia
Published: March 2022

Parties to cross–border disputes are developing a preference for international commercial arbitration as a desired alternative to litigation in the national courts. This trend owes much to the popular pro–arbitration belief that arbitrating parties are granted the autonomy to control their own decision–making process. But is this true? This article explores whether party autonomy is achieved in practice in international commercial arbitration or whether the parties still find themselves burdened with quasilitigious constraints. Upon considering the experience of international parties from an Australian and English perspective, this article finds that the restrictions imposed on parties to international commercial arbitration have developed so as to protect the freedoms they can exercise in the process.
Party Autonomy in Mainland Chinese Commercial Arbitration
Authors: Johnston Graeme
Published: March 2022

This article seeks to give a simple and realistic guide to the extent to which party autonomy is recognized in international commercial arbitration in mainland China. The fact that mainland Chinese law often forces parties to use mainland Chinese arbitration commissions makes it important not only to look at the legal position but also to consider the extent to which the rules and practices of those institutions respect party autonomy in practice.The article therefore addresses the approaches of three of the leading institutions.
A Pro Domo Pleading: Of In–House Counsel, and their Necessary Participation in International Commercial Arbitration
Authors: Najar Jean–Claude
Published: March 2022

Companies and by extension their in–house counsel, more than law firm practitioners, arbitrators, or arbitral institutions, are the “parties”to an arbitration, and therefore play a crucial role in arbitration. International commercial arbitration is an institution which takes as many shapes, but is most importantly what the “parties”make of it. Starting from this premise, in–house counsel should be more proactively involved in their companies’ arbitrations, both when drafting an arbitration clause and when initiating proceedings. They should also control the work that their outside lawyers do, and preferably be involved in managing arbitral proceedings. Because of their unique position, in–house counsel understand all facets of a given issue. They know the challenges and pressures that are brought to bear on companies because they are both independent counsellors and business partners. It is a known fact that parties are increasingly frustrated by time and expense necessary to conduct and conclude an arbitration: to remedy this situation, in–house counsel should take the lead in addressing all aspects of arbitration. For these reasons, at the initiative of a GE senior lawyer, Jean–Claude Najar, representatives from 23 multinationals formed the CCIAG, the Corporate Counsel International Arbitration Group, in November 2006, with the aim of giving these “users” a voice in the international fora, including with the UNCITRAL Working Group. In addition to these efforts, arbitral institutions, law firms and other players should systematically solicit the views of in–house counsel and involve them on issues such as amendment of rules. In–house counsel should also make time available to address these issues.
Narrow Exceptions: A Review of Recent U.S. Precedent Regarding the Due Process and Public Policy Defenses of the New York Convention
Authors: Reed Lucy F.
Published: March 2022

U.S. law has been remarkably consistent in its policy of enforcing foreign arbitral awards under the regime established by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. However U.S. courts, when interpreting the treaty, provide for a baseline of procedural fairness for the litigants. On the Convention’s fiftieth anniversary, this note summarizes the state of U.S. law regarding two exceptions to the enforcement of arbitral awards: the due process exception and the public policy exception. It concludes that U.S. courts interpret them narrowly, to police the parties’ bargain of arbitrating fairly and in good faith.
The Implementation of the New York Convention in Canada
Authors: Alvarez Henri C.
Published: March 2022

The New York Convention came into force in Canada on August 10, 1986. Together with the UNCITRAL Model Law, the Convention provides the legal framework in Canada for the recognition and enforcement of foreign arbitral awards. This article examines the implementation of the New York Convention in Canada and discusses key court decisions interpreting Article V of the Convention. The articles suggests that the adoption of the New York Convention by all Canadian provinces and territories, as well as the apparent reluctance of Canadian courts to refuse enforcement under Article V, indicates a generally favourable attitude toward the recognition and enforcement of foreign arbitral awards in Canada.
Arbitrability, Due Process, and Public Policy Under Article V of the New York Convention Belgian and French Perspectives
Authors: Hanotiau Bernard
Published: March 2022

The free circulation of awards is ensured by the 10 June 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Even though freedom is the essence of arbitration, limits exist. The purpose of this article is to analyse the way France and Belgium deal with the limits related to arbitrability, due process and public policy in the light of Article V of the New York Convention, which lists a series of situations where recognition and enforcement of an award may be refused at the request of the party against whom it is invoked, or by the court on its own motion.
The Influence of the New York Convention on the Development of International Arbitration in Nigeria
Authors: Ufot Dorothy
Published: March 2022

Nigeria acceded to the New York Convention on March 17, 1970, adopting both the commercial and reciprocal reservations. Ever since, the Convention has influenced the development of arbitration as a mechanism for resolving international commercial disputes in Nigeria, with the implementation of the Convention by the Arbitration and Conciliation Act, 1988. Specifically, Sections 51 and 52 of the Arbitration and Conciliation Act are in pari materia with Articles IV and V of the New York Convention on the recognition and enforcement of arbitral awards and the grounds for the refusal of recognition and enforcement of awards. This article discusses how Nigerian courts have interpreted Article V of the New York Convention and Section 52 of the Arbitration and Conciliation Act, in relation to the issues of validity, capacity, procedural due process, arbitrability and public policy, when confronted with applications to deny recognition and enforcement of arbitral awards. The article concludes that although there is generally a “pro-enforcement bias,” by Nigerian courts, in line with global practice, nonetheless, recognition and enforcement may be refused in circumstances relating to the issues which arise under Article V of the New York Convention.
Survey of South East Asian Nations on the Application of the New York Convention
Authors: Lee Shaun , Hwang Michael
Published: March 2022

This article surveys arbitration legislation in South East Asian countries, and ties it to judicial attitudes of intervention based on public policy grounds in respect of the setting aside, recognition and enforcement of arbitral awards.
Recognition and Enforcement of Foreign Awards under the New York Convention in Australia and New Zealand
Authors: Garnett Richard , Pryles Michael
Published: March 2022

This article examines the current status and interpretation of the New York Convention provisions on recognition and enforcement of awards in Australia and New Zealand. While there have been no New Zealand decisions so far, Australian courts have considered a number of important issues including the effect of interim and interlocutory awards, the limitation period applicable to enforcement proceedings, the existence of a residual discretion not to enforce an award, the consequences of misnaming of a party and public policy. While some decisions have been consistent with the Convention’s objectives and purposes, in others courts have arguably relied too heavily on principles of Australian domestic law.
“Investment” and “Investor” in Energy Charter Treaty Arbitration: Uncertain Jurisdiction
Authors: Turinov Anna
Published: March 2022

Establishing investor status is a precondition for substantive protections, and a key jurisdictional issue in arbitration, of investor–state disputes under the Energy Charter Treaty (ECT). This article argues that the differences in the ways the term “investment” is interpreted in arbitration under the ICSID Convention and in international commercial arbitration are to a large extent preserved in arbitration under the Energy Charter Treaty. In ICSID arbitration, which preserves many elements of state sovereignty, tribunals have set a higher threshold for “investment.” In international commercial arbitration, on the other hand, the Arbitration Institute of the Stockholm Chamber of Commerce (SCC) has interpreted the term more broadly, thus capturing more investor activities in the energy sector of the host states. Moreover, both types of arbitral procedure available under the Energy Charter Treaty continue to have their respective advantages and disadvantages. However, given the changing role of states in the global energy sector, this traditional divide may become less clear.
Comment on Dallah v. Pakistan
Authors: Grierson Jacob
Published: March 2022

In Dallah v. Pakistan, the English High Court refused to enforce against Pakistan an award rendered by an International Chamber of Commerce (ICC) tribunal in Paris, on the basis that Pakistan was not a party to the underlying arbitration agreement. Interestingly, it reached that conclusion based on the same French test which had been applied by the arbitral tribunal to reach precisely the opposite conclusion. The High Court’s judgment provides a useful opportunity to consider a number of issues concerning the enforcement of New York Convention awards against non-signatories, and to reflect on possible disadvantages of the French “direct” approach to arbitration agreements (i.e., reviewing them independently of any applicable law).
The Practical Impact of Amendment to Article 85-1, Section 2 of the Government Procurement Act A Report from Taiwan
Authors: Chen Helena H.C.
Published: March 2022

The amendment to Article 85-1, section 2 of the Taiwanese Government Procurement Act, promulgated on July 4, 2007, is generally regarded as the most important change made in the field of Taiwanese construction law in recent years. The new law provides an avenue for contractors to refer disputes arising from government procurement construction contracts to arbitration without a written arbitral agreement, when certain criteria are met. This is quite noteworthy because it deviates from the general requirement for a written arbitration agreement. Furthermore, various questions relating to the application of the amendment also demonstrate that the concise language of such amendment is not sufficient to cope adequately with the needs in practice. This article aims to highlight and analyze major controversial issues relating to the amendment with available administrative interpretation letters and jurisprudence in the hope of providing a better picture of the application of the new law.
Towards a Hierarchy of Norms in Transnational Law?
Authors: Renner Moritz
Published: March 2022

Transnational law as applied in international arbitration is based on private contracts and the principle of party autonomy. It is therefore often described as being increasingly detached from domestic and international law. At the same time, it is well accepted that international arbitral tribunals must apply certain mandatory norms protecting public policy irrespective of the law otherwise applicable. Based on a survey of arbitral practice, this article argues that, taken together, both developments contribute to the emergence of transnational hierarchies of norms, a “constitutionalization” of transnational law.
Arbitrators Granting Antisuit Orders: When Should They and on What Authority?
Authors: Moloo Rahim
Published: March 2022

Parallel proceedings are common even when an arbitral agreement mandates that all disputes be resolved in one forum. When a party to an arbitration agreement wishes to prevent the other from pursuing a parallel proceeding it may seek an antisuit remedy, either from the court at the seat of arbitration or from the arbitral tribunal. This article considers when and on what authority an arbitral tribunal should grant an antisuit order. This article argues that an exclusive arbitration agreement, requiring the parties to resolve their disputes through arbitration to the exclusion of any other forum, gives arbitrators the authority to grant an antisuit order to remedy a breach of the arbitration agreement itself. It is also argued that an award of damages covering the costs of the parallel litigation may be an appropriate supplementary remedy for the breach of an arbitration agreement, or an appropriate remedy for the breach of an antisuit order already granted.
Compensation for Non-expropriatory Breaches of International Investment Law—The Contribution of the Argentine Awards
Authors: Viñuales Jorge E. , Tschanz Pierre-Yves
Published: March 2022

The article explores the rules applicable to the determination of damages for breaches of investment protection standards other than expropriation in the light of recent awards rendered in disputes involving Argentina. The authors argue, in essence, that: (i) the standards of compensation and valuation techniques used for expropriation are not, as such, legally barred in cases of non-expropriatory breaches of international investment law; (ii) the criteria to determine whether or not to borrow the standards and techniques used in case of expropriation are of a factual nature, namely the type of asset or of damage which is at stake and the intensity of the interference with the economic position of the investor; (iii) the valuation techniques that may be deployed to assess specifically what is required by a given standard of compensation are not, as such, imposed by international investment law and, as result, a tribunal can decide whether or not to use the Discounted Cash Flow (DCF) method to assess the fair market value of a given asset.
Issues Relevant to the Termination of Bilateral Investment Treaties
Authors: Carska-Sheppard Andrea
Published: March 2022

Unlike the umbrella clauses contained in bilateral investment treaties (BITs), the termination clauses and issues relevant to the termination of BITs have not sparked the same level of legal interest. BITs occupy an area in the legal system at the intersection of sensitive political and legal issues and, as such, the process of termination of BITs is not void of its complexities. This article discusses some of the issues of termination of BITs by first setting up a brief background on the termination of treaties. It then focuses on BITs and their termination effectuated pursuant to the provisions of the treaty, before turning to supposed premature termination of BITs. The discussion on damages resulting from improper termination is integrated into the debate on the benefits of renegotiation over termination. New econometric studies are more conclusive on the impact of BITs on economic growth in the host states. In this politically sensitive area, when combined with the complex political and legal considerations, the ideal of the survival of the relationship after a termination seems to be the preferred choice.
Comment on Dallah v. Pakistan: Refusal of Enforcement of an ICC Arbitration Award against a Non-Signatory
Authors: Grierson Jacob
Published: March 2022

In Dallah v. Pakistan, the English Court of Appeal confirmed the High Court’s refusal to enforce against Pakistan an award rendered against it by an ICC tribunal in Paris, on the basis that Pakistan was not a party to the underlying arbitration agreement. Fuller comment on the case and the issues raised by it is included in the authors’ comments on the High Court judgment in a previous issue of this journal. The present note restricts itself to summarizing the findings of the Court of Appeal, which are similar to those of the High Court (although one of the Court of Appeal judgments contains a much more extensive discussion of the residuary discretion to enforce under the New York Convention), and to commenting on the Court of Appeal’s intriguing obiter dicta concerning the Hilmarton/Chromalloy controversy.
National Courts and International Arbitration: A Double-edged Sword?
Authors: Sattar Sameer
Published: March 2022

International arbitrations play a key role in resolving cross border commercial disputes. Parties choose international arbitration primarily because it enables the parties to have their disputes adjudicated without any involvement of national courts. It is clear that the supervisory role of national courts is necessary for the proper conduct of international arbitrations and to ensure that the arbitral process meets the due standards of fairness. However, in recent times, the involvement of national courts in aid of effective arbitrations seems to be a growing concern since their involvement tends to hinder the arbitral process rather than protecting the same. In many cases, it can be seen that the supervisory and curial powers are being misused by national courts, the victims of which are parties to international arbitrations. This is most apparent in the Asian subcontinent. This paper discusses in detail the problems arising out of the national court’s role in international arbitrations and highlights few of the leading cases where the national court’s involvement has adversely affected international arbitrations. It also notes the possible dangers associated with undue interferences by national courts which may give rise to state liability under international law. In this connection, the recent landmark decision of Saipem v. Bangladesh is analyzed which sends a clear warning to all national courts exercising supervisory jurisdiction over international arbitrations to exercise their powers cautiously.
Foreign Investment Protection and Regulatory Failures as States’ Contribution to the State of Necessity under Customary International Law – A New Approach Based on the Complexity of Argent
Authors: Alvarez-Jiménez Alberto
Published: March 2022

The customary norm of necessity contains several requirements that must be cumulatively met, one of them being that the state invoking the excuse cannot have substantially contributed to the situation of necessity. However, the NAFTA tribunals in S.D. Myers and GAMI recognized that adverse consequences for foreign investors caused by wrong regulatory choices could not be considered as a violation of the minimum standard of treatment. Implicit in this finding is the premise that perfection is not the standard regarding the quality of abstract regulation. If this is so, the question that needs to be answered is how courts and tribunals should evaluate the issue of a crisis prompted by the failure of regulation of this character, when interpreting the customary rule of necessity. The purpose of this article is to draw on the factual richness of Argentina’s 2001 crisis to develop a framework of analysis that permits courts and tribunals to evaluate regulatory failures as contributors to the situation of necessity under customary international law.
The Swiss Supreme Court Refits the Frigates—ICC Award Set Aside After More than Thirteen Years
Authors: Rigozzi Antonio , Leimbacher Elisabeth
Published: March 2022

In its decision 4A_596/2008 of October 6, 2009, the Swiss Supreme Court vacated and ordered the revision of an ICC Final Arbitral Award rendered on July 31, 1996 in the so-called “frigate-to-Taiwan” case. The Swiss Supreme Court considered that the findings in the French “ordonnance de non lieu” of October 1, 2008 — namely that Mr. Sirven committed a “fraud on the judgment” by submitting a false testimony in the ICC arbitration — were conclusive enough to order the revision of the Award.

Article 123(1) of the Swiss Supreme Court Act ( Loi sur le Tribunal Fédéral) allows for the revision of an award when criminal proceedings establish that the award was influenced, to the detriment of the petitioner, by a crime or a felony. This decision, which is the first one in which the Swiss Supreme Court sets aside an award on this legal basis, further clarifies the meaning of Article 123(1) in many respects and calls for some clarifications. Finally, this decision seems to bring this political saga to an end, as it is not anticipated that a new arbitration will be initiated.
Too Many Forums for Investment Disputes? ICSID Illustrations of Parallel Proceedings and Analysis
Authors: Shookman Jamie
Published: March 2022

Parallel proceedings occur when the same cause of action is adjudicated in more than one forum, either before multiple domestic courts, domestic and international courts, or before multiple international forums. Parallel proceedings are problematic at both the national and international levels as they waste money and conflicting results undermine legal certainty. The doctrines of lis pendens and res judicata are the most common solutions to managing the problem, yet both are difficult to apply in the arbitration context. Other mechanisms, such as anti-suit injunctions, so-called umbrella clauses, and fork-in-the-road clauses, are therefore intended to target the problem of parallel proceedings in international arbitration. Parallel proceedings are particularly problematic in investment arbitration because of features in investment treaties such as bilateralism, non-exclusivity, exclusion of local remedies and multiple investor claims.

Two recent ICSID cases, SGS v. Pakistan and Toto v. Lebanon, reveal some of the current problems with creating rules on parallel proceedings in investment arbitration. The cases demonstrate that the distinction between treaty claims (which trigger ICSID jurisdiction) and contract claims (which are typically adjudicated in national courts) is untenable and likely to increase future parallel proceedings. The distinction is especially difficult to maintain because determining the nature of a claim is often a question of interpretation, and arbitral tribunals are hesitant to scrutinize a claimant’s formulation of its cause of action. The two cases also show the uncertain force of choice-of-forum clauses and how they often allow arbitrators to simply bypass parties’ previous agreements. Finally, umbrella clauses have created much confusion, as previous arbitral tribunals have interpreted nearly identical clauses in four different ways. The uncertainty surrounding the future management of parallel proceedings highlights deeper, unsolved questions regarding the power private international law affords multinational enterprises vis-à-vis sovereign states in an increasingly global legal order.
The Revised IBA Rules on the Taking of Evidence in International Arbitration
Authors: Kühner Detlev
Published: March 2022

As of May 29, 2010, arbitration users can benefit from a revised version of the IBA Rules on the Taking of Evidence in international arbitration. Although the numbering and headings of the 1999 Rules could be, for the most part, maintained, the revised Rules contain a series of useful modifications to address new issues and trends that have arisen during the last decade. This article analyses the changes brought to the 2010 Rules in detail and shows the extent to which their main goal to keep up with new trends and challenges has been attained.
Enforceability of Arbitration Clauses in Online Business-to-Consumer Contracts
Authors: Alqudah Mutasim Ahmad
Published: March 2022

As online cross-border business-to-consumer (“B2C”) arbitration is a type of international arbitration, and as the New York Convention 1958 (NYC) has more than 144 signatories, the enforcement of an online crossborder B2C arbitration clause is most likely to be governed by the rules of the NYC. However, two issues in the NYC rules can seriously impact the certainty of the enforceability of the online B2C arbitration clause. The first is the issue of satisfying the formal validity requirement under Article II(1), (2) of the NYC. The second is that of violating the public policy exception to the enforcement of an arbitration clause under the NYC. This article explains these two issues and it will conclude with the suggestion that a new regulatory model for online B2C arbitration is required and that such a model would eliminate uncertainties resulting from the current rules of the NYC.
Waiver of Appeal to the Swiss Federal Tribunal: Recent Evolution of the Case Law and Compatibility with ECHR, Article 6
Authors: Krausz Nora
Published: March 2022

Parties both residing outside of Switzerland can waive in advance their right to appeal the arbitral award before the Swiss Federal Tribunal. Waiving the only possibility of control by the state judge has severe consequences. The waiver also raises the question of a possible violation of the rights enshrined in Article 6 ECHR. After having initially set strict conditions for the validity of waivers, the Federal Tribunal recently turned to a more liberal approach. This article will examine the conditions of the waiver, its consequences and its compatibility with Article 6 ECHR, with a particular focus on the recent case law.
Harmonisation of Irish Arbitration Law: Arbitration Act 2010
Authors: Reilly Louise
Published: March 2022

On June 8, 2010, a new Arbitration Act came into force in the Republic of Ireland which abolished the distinction between domestic and international arbitration and incorporated the UNCITRAL Model Law on International Commercial Arbitration as the grounding piece of legislation for all arbitrations conducted in Ireland.
Arbitration Agreements and Anational Law: A Question of Intent?
Authors: Hook Maria
Published: March 2022

Within the context of increased delocalization in the law of international arbitration, anational law has become a well accepted choice of law in the resolution of international disputes. In Halpern v. Halpern, however, the English High Court decided that arbitration agreements form an exception to that development, holding that these are subject to the common law rule that confines contracts to the realms of municipal legal systems. This article discusses the applicability of anational law to arbitration agreements. In particular, the article argues that this issue should be determined in accordance with the principle of party autonomy and, on that basis, evaluates the English approach against a wider international framework.
International Arbitration and the Duty to Know the Law
Authors: Waincymer Jeffrey M.
Published: March 2022

A contentious question in terms of arbitrator duties is whether a tribunal must know and apply the appropriate law regardless of the contentions of the parties, under the principle iura novit curia, in some cases, even without notice to the parties. The better view is that tribunals should not deal with matters not raised, and should always afford parties an opportunity to make adequate submissions. The most significant area where duties may arise involves the duty to accurately apply the law. The obligation to follow the mandate and act with due care suggest that a tribunal must come to the most correct conclusion and should not simply choose which is the least inaccurate of two competing submissions. Nevertheless, in such circumstances it will always be necessary to give the parties an adequate warning of the tribunal's thinking and a proper opportunity to make submissions in a timely and efficient manner.
Prospects of Foreign Arbitration Institutions Administering Arbitration in China
Authors: Kun Fan
Published: March 2022

There has been much concern recently as to whether foreign arbitration institutions may administer arbitrations with the seat in mainland China. This article makes a legal analysis of the potential problems arising in this matter, demonstrates the judicial attitudes towards enforcing awards rendered in mainland China but administered by foreign arbitration institutions, and further analyzes the legal obstacles in the enforcement of such awards.
Negotiating and Drafting Arbitration Agreements with Chinese Parties  Special Considerations of Chinese Law and Practice
Authors: Yan Bing , Friedland Paul
Published: March 2022

When doing business with Chinese parties, foreign investors are wary of having to litigate in China due to the influence of local powers in the judicial process. Even the enforcement of foreign judgments bears significant uncertainty. In light of this, arbitration is a better option for foreign investors to resolve disputes in China. This article aims to provide a straightforward guide to the negotiation of arbitration agreements with Chinese parties. It provides an analysis of key provisions of Chinese arbitration law, highlights the distinctive features of the China International Economic and Trade Arbitration Commission (CIETAC) Arbitration Rules, and provides solutions to the various restrictions of Chinese arbitration law and practice.
Party Autonomy and the Constitutionality of Nigerian Arbitration and Conciliation Act 1988, Sections 7(4) and 34  Commentary on Agip Oil Co. Ltd. v. Kremmer and others, Chief Felix Ogunwa
Authors: Ibe Chukwuemeka E.
Published: March 2022

The Nigerian Arbitration and Conciliation Act provides for appointment of arbitrators by the High Court, upon application by a party where there is a total failure of parties' agreed procedure for constituting the arbitral panel. The court's decision on the matter is final without any right of appeal. The Nigerian Constitution provides for the right of appeal in a final decision of a High Court. The courts in Nigeria have given conflicting decisions interpreting the purport of the law and the Constitution occasioning great controversies amongst text-writers. The author seeks to address the resultant misgivings.
The Arbitrator as Mediator, and Mediator as Arbitrator
Authors: Mason Paul Eric
Published: March 2022

To some ears these two functions will sound incompatible with each other, but are they? Experience around the world shows that these two roles and functions can be intertwined, although there are some legal and practical limits. It is difficult, although not impossible, for someone to be effective as both an arbitrator and a mediator since entirely different sets of skills and mindsets are required for each role. This article will explore several facets of this question.
Keeping the Golden Goose Alive: Could Alternative Fee Arrangements Reduce the Cost of International Arbitration?
Authors: Greenwood Lucy
Published: March 2022

The spiralling cost of conducting international arbitrations has been extensively debated in recent years. Most of the cost of pursuing or defending an international arbitration is attributable to the cost of legal representation. In this article the author considers the use of alternative fee arrangements in international arbitration. The author discusses the use of innovative procurement processes by parties which are intended to drive down the cost of legal services. Although the reason for using such processes is to reduce the cost to the client, the author argues that alternative fee arrangements could result in arbitrations being conducted more efficiently and proactively. Accepting alternative fee arrangements will require law firms to review not only their billing practices, but also to revisit the manner in which they approach the conduct of international arbitrations in order to increase efficiency whilst maintaining profitability.
Big Trouble in Little China  Could a Constitutional Dilemma Concerning State Immunity Threaten Hong Kongs Position as a Pre-eminent Arbitration Seat?
Authors: Bell Ashley
Published: March 2022

It has long been recognized that sovereign states could resist the enforcement of arbitration awards against their property in foreign jurisdictions by asserting immunity from suit. In many instances, this 'obstacle' to enforcement was tempered by the fact that a state could only claim immunity in respect of its governmental, as opposed to commercial, activities. In Hong Kong, this is no longer the case following the decision in Democratic Republic of the Congo and others v. FG Hemisphere Associates L.L.C., rendering it much more difficult to enforce awards against the assets of foreign states in Hong Kong and leading to concerns that the decision will impact negatively on Hong Kong's standing as a pre-eminent international arbitration seat. This article will examine the decision and those concerns.
Declaratory Relief in International Arbitration
Authors: Kostytska Maria , Dunaud Patrick
Published: March 2022

This article explores the benefits, limitations, feasibility and legitimacy of declaratory remedies in international arbitration, focusing in particular on arbitrations involving sovereigns. Section 1 provides the background and discusses the advantages and limitations of declaratory relief in international arbitration. Section 2 discusses the sources of arbitral tribunals' authority to grant declaratory relief. Section 3 touches upon the basic prerequisite to granting declaratory relief in national and international legal systems. Section 4 analyses the arbitral practice of issuing declaratory awards in arbitrations involving sovereigns. Pre-emptive use of declaratory remedies is discussed in section 5.
Contemporary Issues in International Arbitration and Mediation: The Fordham Papers 2010
Authors: Fouret Julien
Published: March 2022

The book Contemporary Issues in International Arbitration and Mediation - The Fordham Papers 2010 aims at providing, on an annual basis, a global picture and analysis of the current hot topics in international arbitration and mediation. Via the 24 papers reproduced, these 2010 Fordham papers should be seen as an annual must have to be fully updated on these issues, being a practitioner or a law student.
Amicus Curiae in International Investment Arbitration: Can It Enhance the Transparency of Investment Dispute Resolution?
Authors: Zachariasiewicz Maciej
Published: March 2022

In investment arbitration there is a tension between the consensual commercial character of a dispute and an increasing need to offer transparent proceedings where a public interest is involved. It came to be quite clear from the beginning of the twenty-first century that investment arbitration would benefit from being more transparent and that the participation of amici curiae might be one method of addressing the problem. The Article concentrates on the role of non-disputing parties in investment arbitration and the changes that have occurred in the arbitration rules and BITs during the last decade. It is argued that the participation of non-disputing parties does increase the transparency of investment arbitration and allows for a greater democratic legitimacy of the whole process. In particular, the Article advocates a view that it is both possible and desirable to enhance the existing procedural framework by guaranteeing to amici curiae access to the arbitration documents and to oral hearings, subject to the necessary protection of genuine commercial secrets.
Constitutional Scrutiny of Arbitral Awards: Odd Precedents in Central Europe
Authors: Gyarfas Juraj
Published: March 2022

In addition to an application for setting aside, losing parties in some jurisdictions have been trying to challenge an arbitral award by means of an individual constitutional complaint. In many European jurisdictions, such complaints heard by the constitutional court are remedies of last-resort against decisions of public authorities. However, it is highly questionable that this remedy should be available against rulings of arbitral awards. Nonetheless, constitutional courts in some Central European jurisdictions have deemed such complaints admissible and have even annulled arbitral awards, thereby opening intriguing questions on the nature of arbitration and potentially upsetting the institutional setting of judicial scrutiny over arbitral awards and the principle of finality.
Judicial Review of International Arbitral Awards on the Public Policy Exception in Indonesia
Authors: Junita Fifi
Published: March 2022

The principle of non-review of arbitral awards on the merits is of foundational importance to the finality and enforceability of foreign awards. This paper examines the nature and scope of judicial review of international awards based on the public policy exception by the Indonesian courts. This article argues that the courts review the material findings of facts of the award expansively, relying on the public policy exception. It indicates that the courts do not only review errors in findings of fact, but they also engage in a full and independent re-examination of the factual basis that allegedly gives rise to the public policy violation. In the latter part of this article, the author concludes that the broad scope and meaning ascribed to the public policy exception under the Indonesian Arbitration law and the court's expansive intervention are likely to inhibit the finality of foreign awards in Indonesia.
The (Non)-Application of the New York Convention by the Qatari Courts: ITIIC v. Dyncorp
Authors: Lawry-White Merryl
Published: March 2022

In 2003, Qatar ratified the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). However, like a number of other Middle Eastern countries, Qatar did not amend its arbitration law to take account of its accession to the Convention. The resultant divergence is likely to create confusion for litigants and judges alike as demonstrated by the case of ITIIC v. Dyncorp, where the annulment of a foreign award by the Qatari courts notwithstanding the force of the Convention created a carousel of cases to be commenced in three jurisdictions over the course of five years.
Investment Arbitration in Costa Rica
Authors: Figueres Dyalá Jiménez
Published: March 2022

Costa Rica signed most of its investment treaties over the last two decades, providing substantive protection and an international means of dispute resolution to foreign investors of many countries. This article provides an overview of the salient provisions included in those treaties that deal with international arbitration, as well as of the cases in which Costa Rica has acted as respondent, in order to offer an outlook of the investment protection regime in force in this country.
Provisional Measures, Permanent Changes: The Arbitration-Friendliness of the Brazilian Superior Court of Justice
Authors: Tripodi Leandro
Published: March 2022

This case comment focuses on a recent court decision by the Brazilian Superior Court of Justice which is of significant interest in the context of the development of arbitration in Brazil. The decision affirms the jurisdiction of Brazilian courts to grant provisional measures before the constitution of the arbitral tribunal, subject to the latter's ratification, while denying jurisdiction for the same purpose where the arbitral tribunal has been constituted. While not completely in line with current international standards, the decision positively supports the jurisdiction of the arbitral tribunal to issue provisional measures in light of an all-but-clear provision of Brazilian law.