bluuebunny/crossref_metadata_2025 huggingface dataset:
Sur le bon usage des sentences d’accord parties
Authors: Bertrand Edouard
Published: April 2022

Awards by consent are a common feature of international arbitration. Yet there are no commonly accepted rules defining precisely the elaboration, the effect and the recognition of awards by consent. One of the reasons for this situation is that an award by consent has a dual nature: it is an award but has a contractual origin.

The purpose of this article is to look at some of the practical consequences flowing from this dual nature. First, it compares the relative merits, in relation to enforcement, of awards by consent and of the underlying settlement agreements and concludes that although awards by consent are on the whole easier to enforce there are situations where that is not necessarily the case. In particular, awards by consent can pose serious problems if as a result of unclear or incomplete drafting they raise questions of interpretation. A key concept proposed by this article is that an award by consent serves no purpose as an award if it does not have a jurisdictional effect (‘effet juridictionnel’) and thus that there is no point in issuing an award by consent if the underlying settlement agreement has been fully complied with by the parties when the issuance of the award is requested from the arbitral tribunal.

Secondly, this article explores the extent to which the annulment of the underlying settlement agreement must cause the award by consent embodying this agreement, or the exequatur judgments declaring that award enforceable, to lapse. The article finds that there are possibly two approaches to this issue, depending on whether the award by consent is seen as a mere instrument created in order to facilitate the settlement agreement or whether it stands as an award on its own. This article considers several factual situations in which the question could arise and concludes that there can be no clear and predictable solution, irrespective of which approach is taken by the various courts or tribunals which may have to rule on the issue.

In its conclusion, the article suggests that the problems which occur in relation to the enforcement of awards by consent are best avoided if both the agreement and the award are valid and functional. The arbitrator must therefore take a proactive role in ensuring that the underlying settlement agreement is as free as possible from defects and that it is reflected in the award in a manner which leaves no room for further disputes. The article pleads for the right of the arbitrator to refuse to issue an award by consent if the parties are unable or unwilling to correct perceived deficiencies in the settlement agreement which could later cause the agreement or the award to fall apart.
A Breath of Fresh Air in Chinese Dispute Resolution
Authors: Wagoner David E.
Published: April 2022

The author summarizes the changes to the CIETAC Arbitration Rules of 1 May 2005. In a second part of the paper he compares CIETAC arbitration in Beijing with ICC Arbitration in Hong Kong.
Les récents progrès de la jurisprudence brésilienne en matière d’arbitrage commercial international
Authors: Wald Arnoldo
Published: April 2022

Brazilian arbitration practice was influenced by three landmark events: the enactment, in 1996, of the Brazilian Arbitration Act (Federal Law No. 9.307), the adhesion, in 2002, to the New York Convention and the enactment of Constitutional Amendment No. 45, on 31 December 2004, which transferred to the Superior Court (?Superior Tribunal de Justiça?) the competence for the recognition of foreign arbitral awards previously held by the Supreme Court (?Supremo Tribunal Federal?). The Brazilian Arbitration Act gave great impulse to the use of arbitration domestically, whilst the ratification of the New York Convention introduced Brazil in the group of receptive countries and in the list of recommended places of arbitration. Nonetheless, the transfer of competence to the Superior Court triggered a new trend in local courts more favorable to arbitration and more in line with international practice. For instance, the validity of arbitration clauses signed by state-owned companies and of arbitration clauses included in contracts that were not signed by all the parties have been finally recognized.

These cases clearly illustrate this important movement towards a more comprehensive approach from Brazilian judges with respect to arbitration and their concern to provide a more stable legal environment for the development of local economy.
De l’arbitrabilité des litiges successoraux
Authors: Perrin Julien
Published: April 2022

When somebody dies, his assets must be divided among his heirs; this process is sometimes complex. A cause for litigation may thus arise. The aim of the present article is to examine the possibilities offered by arbitration in the resolution of such problems when Swiss law applies to the succession.

Once the succession process has started (after the estate owner?s (de cujus?) trespass), scholars generally acknowlege the possibility for the heirs to submit their disputes to arbitration, be it under the Intercantonal Concordate on Arbitration or the Swiss Private International Law Act. However, this possibility can be limited in some cases, mainly in the event of an official liquidation process (?liquidation officielle?).

In the same way, it also seems possible to have an arbitration clause in a ?pacte successoral?, whereby the estate owner and the heirs ? during the lifetime of the testator ? find solutions in advance relating to the liquidation of the estate.

The most debated issue is whether the testator can provide for arbitration in his or her will unilaterally, in a way that binds their heirs. The testator is usually in a position to make arbitration a condition of the legacy. The person entitled to receive a legacy under the will should not be entitled to receive anything if he does not submit himself to arbitration in case of dispute.

However, the heirs? compulsory share (?réserve?) can be an obstacle to arbitration. When the testator includes an arbitration clause in his will, the heir entitled to a compulsory share could avoid it. To prevent this, the testator could indirectly oblige his heirs to accept arbitration by providing for them to receive more than their reserved share in case they comply with the arbitration clause and, to the opposite, to a reduction of the compulsory share in case they do not comply with the arbitration clause.

To sum up, even if arbitration is not always possible in succession matters, it can be an appropriate solution in many cases, especially in order to avoid the parcelling of estates (?morcellement des successions?) which often occurs when the estate owner has assets in different countries.
Exception d’arbitrage et litispendance en droit suisse Comment départager le juge et l’arbitre ?
Authors: Poudret Jean-François
Published: April 2022

What are the powers of arbitral tribunals when confronted with a dispute that is already pending before a court? Inversely, what standards should the courts apply when dealing with a lawsuit that may be subject to arbitration? What rules apply to lis alibi pendens in international and domestic arbitration? It is generally admitted that the arbitral tribunal should have the priority, but not the exclusivity, of deciding on the validity of the arbitration agreement (kompetenz-kompetenz). Authorities are diverging, however, whether the courts should in all circumstances give priority to the arbitrators and are not entitled to examine the existence of the arbitration agreement, i.e., the so-called negative effect of the principle of kompetenz-kompetenz, or whether in certain cases, the courts should nevertheless be able to assess the existence and scope of the arbitration agreement. Jean-François Poudret revisits critically the case law of the Swiss Supreme Court, the new article 186(1bis) of the Swiss PIL Act, the Recommendations of the International Law Association as well as a recent paper by Emmanuel Gaillard.
Witnesses before the International Arbitral Tribunal
Authors: Oetiker Christian
Published: April 2022

It is commonplace before international arbitral tribunals sitting in Switzerland to conduct extensive examinations of witnesses. In the interest of admitting flexible solutions, national arbitration acts and institutional arbitration rules do usually not provide for detailed provisions as to the taking of evidence from witnesses. Nevertheless, it is obviously in the interest of all parties to arbitral proceedings that firm and clear rules are determined in this regard. It is the arbitral tribunal’s task to provide for rules which are adapted to the individual case. This article gives an overview of the issues that may arise in connection with the examination of witnesses and for which the arbitral tribunal should provide supplementary procedural rules, if the procedural rules agreed by the parties do not provide for detailed rules.
Les recours au Tribunal fédéral suisse en matière d’arbitrage international (Commentaire de l’art. 77 LTF)
Authors: Poudret Jean-François
Published: April 2022

On 1 January 2007, a new law on the Swiss Supreme Court entered into force. Professor Poudret analyzes Art. 77 of the law which deals with challenges of international arbitration awards. The Supreme Court has exclusive jurisdiction to decide such challenges.
Swiss Rules and ‘Domestic’ Arbitration – Why the Swiss Chambers Should Agree to Administer Domestic Cases under the Swiss Rules
Authors: Schöll Michael
Published: April 2022

The Swiss Rules of International Arbitration were drafted to govern arbitrations that are international within the meaning of Chapter 12 of the Statute on Private International Law. Victim of their own success, the Swiss Rules have become increasingly popular for disputes that are technically speaking domestic and therefore governed by the Intercantonal Arbitration Convention (Concordat). Nevertheless, the traditional position of the Swiss Chambers was to refer domestic parties to the domestic arbitration rules of the Chamber that administered the case notwithstanding an explicit choice of Swiss Rules. This paper argues that the Swiss Chambers should agree to administer domestic cases under the Swiss Rules. Recent evidence from the author’s practice suggests that change may be under way.
Arbitration Clauses in Chains of Contracts
Authors: Mohs Florian , Schwenzer Ingeborg
Published: April 2022

To foster multi-party arbitrations French, US, and Austrian law allow, with significant nuances, for the extension of arbitration clauses through chains of contracts to claims by the ultimate buyer as a third party to the contract containing the arbitration clause against the first seller/manufacturer. The possibility of an extension of an arbitration clause in the case of a chain of contracts is inextricably intertwined with the substantive law question of whether or not the ultimate buyer may take direct recourse against a remote seller. Its admissibility cannot be regarded as a principle of international arbitration but is solely given if the domestic law of a jurisdiction that acknowledges the extension of an arbitration clause to a third party in a chain of contracts applies. Because no direct contractual relationship exists between the ultimate buyer and the remote seller, the buyer’s direct claims sound in tort. The law applicable to these claims by virtue of the conflicts rules on products liability or tort should decide on the extension of the arbitration clause as well. Remaining procedural disadvantages for the middle-man in a chain of contracts can only be addressed by contract drafting.
Demnächst erweiterter Anwendungsbereich für das 12. Kapitel des IPRG
Authors: Wenger Werner
Published: April 2022

In Switzerland, international arbitration is governed by the provisions of Chapter 12 of the Swiss Private International Law Act (“PILS”) whereas domestic arbitration is governed by the Concordat which will be replaced, as from 1 January 2011, by Part 3 of the Swiss Code on Civil Procedure (“CCP”). The distinctive criterion is whether, at the time when the arbitration agreement was entered into, at least one of the parties had his/her domicile or his/her habitual residence or - in the case of a corporate party - its seat outside Switzerland (art. 176.1 PILS). Accordingly, an arbitration agreement between three parties (A in a foreign country, B and C in Switzerland) will, at first sight, be qualified as international. However, should exclusively B and C be the parties to the actual arbitral proceedings, the arbitration must be deemed as domestic according to a decision rendered by the Swiss Federal Tribunal in 2002. Therefore, the qualification may remain uncertain until the parties to the actual proceedings are known. Since the CCP (art. 353.2), in contrast to the Concordat, grants the parties the possibility to submit domestic arbitration to Chapter 12 of the PILA, such uncertainty may be avoided by the parties’ explicit declaration to exclude the application of Part 3 of the CCP-CH and to agree on the application of Chapter 12 of the PILS.
Class Action Arbitration: A New Challenge?
Authors: Nater-Bass Gabrielle
Published: April 2022

With the increasing use of arbitration clauses in standardized mass contracts, questions have arisen regarding the admissibility and applicability of the class action to the field of arbitration. The US appears to have now given «class action arbitrations» the green light. Class actions, therefore, are no longer limited to state court litigations in the US, but are now regularly seen in arbitration proceedings as well. Since the beginning of 2000, many European countries have also started to adopt new legislation regarding class, mass and group action litigation. Thus, Europe can no longer be perceived to be entirely opposed to class or mass action litigation in principle. It could therefore be only a matter of time, before first class action arbitrations are also initiated in Europe.

The article seeks to shed some light on various questions arising from the combination of class actions and arbitration. In particular, after analyzing the background of class action litigation in the US, the challenges associated with class action arbitrations are described and the main obstacles to European class action arbitrations discussed. Finally, some thoughts regarding how Europe can prepare itself for class action arbitration are provided.
Pitfalls to Avoid When Drafting Arbitration Clauses in India-Related Contracts
Authors: Ritz Philipp
Published: April 2022

Parties to India-related contracts cannot trust that model arbitration clauses suggested by arbitral institutions are as effective in India as in other jurisdictions. This article gives an overview of the relevant cases of the Indian Supreme Court in this context and shows how parties should best draft arbitration clauses to shield arbitrations from the negative consequences of these judgments, including by reference to certain specific provisions of the Indian Arbitration Act.
Annulment of International Arbitration Awards: The Orinoco Steamship Case Sails On
Authors: Nelson Timothy G.
Published: April 2022

Public international law recognizes certain grounds upon which an arbitral award may be vacated. The International Law Commission, in its 1958 Draft Articles on Arbitral Procedure, attempted to codify these principles as including exces de pouvoir, corruption, serious procedural misconduct and failure to state reasons. The 1965 ICSID Convention has largely adopted these grounds, and ICSID annulment jurisprudence has become highly significant in this field. The seminal decision on annulment of arbitration awards, however, remains the Permanent Court of Arbitration’s 1910 decision in the Orinoco Steamship case. The principles developed in Orinoco Steamship form the bedrock foundation of annulment practice today.
Sind in Zukunft Patentstreitigkeiten in der Schweiz de lege lata nicht mehr schiedsfähig?
Authors: Legler Thomas
Published: April 2022

In March 2009, Swiss Parliament passed a new law establishing a Federal Patent Court. This new Court is expected to start operating in 2011, simultaneously with the coming into effect of the new unified Swiss Civil Procedure Law. The Federal Patent Court will serve as the court of first instance in patent matters (infringement and validity claims) for the whole territory of Switzerland thereby replacing to an essential extent the Cantonal courts which were so far competent in patent matters.

Surprisingly, the Swiss legislator has not specifically addressed the Federal Patent Court’s jurisdiction in relation to arbitral tribunals sitting in Switzerland. However, the new law speaks of the Court’s “exclusive jurisdiction” in patent matters. The issue therefore arises as to whether, in the future, patent claims could still be decided by arbitral tribunals seated in Switzerland.

Switzerland has always been considered as being one of the most liberal countries in the world with regard to the arbitrability of intellectual property claims. Already in 1975, the Swiss Office for Intellectual Property confirmed this approach in a published legal opinion referring to domestic arbitration. This opinion is still valid and can also be extended to international arbitration. What matters is whether an intellectual property claim can be subject to arbitration in accordance with Art. 177 para. 1 of the Private International Law Act (PIL) (i.e. any claim presenting a financial interest). This is usually the case, with some exceptions such as copyright matters relating to moral rights.

Accordingly, in the author’s view, the terms “exclusive jurisdiction” used in the new law, only refer to the position of the Federal Patent Court within the (state) judicial system. Absent any specific statement in the new law or related materials, these terms do not refer to the new Court’s jurisdiction in relation and compared to arbitration. A different interpretation would in addition lead to the strange result that patent disputes would fall under a different jurisdiction than trademark and design disputes. Hence, the position remains in Switzerland that all aspects of intellectual property rights, including patents, continue to be arbitrable to the extent that the claims fall under the ambit of Article 177 PIL.
De l’opportunité de modifier l’art. 7 LDIP
Authors: Tschanz Pierre-Yves
Published: April 2022

The Swiss Private International Law Act (the “PIL Act”) directs Swiss courts to dismiss for lack of jurisdiction any case where an arbitral tribunal assumes jurisdiction (Art. 7).

A motion is pending before the Swiss Parliament to add a Subsection 2 to PIL Act Article 7 to provide that Swiss courts must defer their jurisdictional decision until the arbitral tribunal has decided on its own jurisdiction or, it should be added, if it cannot be appointed within a reasonable time.

This amendment is justified because the jurisdiction of the courts is displaced if, and only if, an arbitral tribunal assumes jurisdiction over the case. Therefore, the court’s jurisdictional decision, which has res judicata effect, may not be based on a prima facie review of the alleged arbitration agreement, or even on an in abstracto review of the jurisdiction of a hypothetical arbitral tribunal by the court.
Reasonable Opportunity to Present One’s Case – Recent English Case Law
Authors: Maidment Katerina , Bamforth Richard
Published: April 2022

It is a guiding principle of arbitration that each party must have a reasonable opportunity to put its case to the tribunal. Under English law, this principle is enshrined in section 33(1)(a) of the Arbitration Act 1996 and is expressed as a duty of the tribunal which must “act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent”.

This article discusses recent English case law in order to identify the extent of the onus on the tribunal to afford the parties a reasonable opportunity to present their case, and, as a corollary, to identify the onus on the parties themselves and their counsel to ensure that their case is comprehensively set out and that their opponent?s case is comprehensively answered.
New Rules on Domestic Arbitration in Switzerland
Authors: Voser Nathalie
Published: April 2022

Until 2000, the competence for procedural laws in Switzerland had been vested with the cantons and not with the Swiss Federation. For domestic arbitration, a unification of the cantonal provisions had taken place through a Concordat, which is an agreement between cantons. The Concordat regarding domestic arbitration was concluded in 1969 (“Concordat”).

On 1 January 2011, the new Swiss Code on Civil Procedure (“CCP”) will enter into force. It regulates and unifies the civil procedure before State Courts throughout Switzerland. In its Part 3, it provides for a new set of rules for domestic arbitration.

The present article discusses the main principles and goals of the revised rules on domestic arbitration in Switzerland. Although the new rules are based on the Concordat, some changes have been introduced. The present article highlights the most important ones. The drafters of the CCP provisions on domestic arbitration have not limited themselves to amending the Concordat but have taken the opportunity to modernize the current regime of domestic arbitration and have thus introduced new provisions regulating the issues which have not been explicitly provided for under the old regime. Some of these provisions are specifically noteworthy also from the point of view of international arbitration practitioners because these provisions are also new in comparison to Chapter 12 of the Swiss Private International Law Act (“PILA”), which forms the Swiss lex arbitrii for international arbitration. The article therefore also briefly highlights the main differences of the revised rules on domestic arbitration as compared to Chapter 12 PILA.

Finally, as a concluding remark, the author addresses the question of whether, in light of the newly introduced rules on domestic arbitration, the PILA is in need of a revision as well.
Collective Arbitration Under the DIS Supplementary Rules for Corporate Law Disputes: A European Form of Class Arbitration?
Authors: Strong S.I.
Published: April 2022

A great deal of attention has been paid recently to class arbitration, a US form of large-scale arbitral relief that brings many of the procedures used in judicial class actions into the arbitral context. However, the United States is not the only country to use arbitration to provide collective redress. Germany has recently developed its own form of collective arbitration through the promulgation of the DIS Supplementary Rules for Corporate Law Disputes. This article compares the DIS Supplementary Rules with the American Arbitration Association's Supplementary Rules for Class Arbitration to identify differences and similarities between the two procedural approaches and to consider the extent to which the two rule systems reflect the jurisprudential preferences of Germany and the United States.
Procédure de liquidation dune partie, arbitrage et droit daccès à la justice : limpossible équation ?
Authors: Poloni Flore , Dupeyron Carine
Published: April 2022

The impossible relationship between arbitration and the insolvent party?

The ICC Arbitration Rules provide that each party should contribute in equal shares to the advance on costs of the arbitration. However when a party has submitted counterclaims and refuses to comply with such payment, the other party may request the Court to set separate advances on costs. If the defaulting party still does not comply with the advance on costs within a time-limit set by the Secretariat, the rules provide that its counterclaims may be considered withdrawn. However, such withdrawal does not prevent the defaulting party from reintroducing the same claims at a later date in another proceeding.

The Paris Court of Appeal was recently confronted with the issue of the validity of an arbitral award rendered in a case where a company which was being liquidated could not pay the advance on cost and accordingly had its counterclaims withdrawn from the proceedings. On November 17, 2011, the Paris Court judged that, despite the conformity of the withdrawal decision taken by International court of Arbitration with its Rules, the defaulting party had been deprived of its counterclaim in practice. Indeed, the possibility of reintroducing the claim was only theoretical while the liquidation process were ongoing and the withdrawal in practice amounted to a denial of justice and resulted into breaching the equality between the parties. As a consequence, the award was considered in breach of the adversarial principle and international public policy and was annulled on the grounds of former articles 1502 (4) and (5) and 1504 of the French Code of Civil procedure.

If this decision may be considered fair to the insolvent party acting in good faith, it questions essential principles of arbitration as a system of private justice. Moreover, as the strict application of the ICC Arbitration Rules is hereby criticized by the Paris Court of Appeals, this decision creates additional doubts as to the scope of the duties belonging to the arbitral tribunal for the award to comply with the requirements of due process.
Ein Kontrapunkt: Die neue Schiedsgerichtsordnung der Handelskammer Deutschland-Schweiz
Authors: Wenger Werner
Published: April 2022

The German-Swiss Chamber of Commerce, head-quartered in Zurich, has issued revised Arbitration Rules, effective as from 1 July 2012. The revision follows in many aspects the trends shown in other recently revised rules in institutional arbitration by further enhancing procedural efficiency and by introducing a fast track procedure. However, as compared with other institutional arbitration rules, the German-Swiss Chamber of Commerce sets a counterpoint by explicitly providing for arbitral proceedings structured in accordance with the procedural tradition familiar to the users in the geographic area of its clientele: The proceedings will follow the inquisitorial, not the adversarial system. The arbitrator shall attempt to reconcile the parties in various stages of the proceedings; he may even use caucus sessions to achieve such goal. The common law system of presenting evidence (e. g. written witness statements) is not admitted in principle; it is the arbitrator who puts the questions to the witnesses.
UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration
Authors: Montineri Corinne , Salasky Julia
Published: April 2022

In July 2013, UNCITRAL adopted Rules on Transparency in Treaty-based Investor-State Arbitration (the "Rules on Transparency" or the "Rules"), which will be, coming into force on 1 April 2014, the most comprehensive set of procedural rules in existence governing transparency in treaty-based investor-State disputes. The intergovernmental nature of the negotiation of, and consensus in relation to, the final instrument, confers a legitimacy that is unique to UNCITRAL.

This article proceeds to set out the resolution of the intensively debated issue of consent - as ultimately encapsulated in the scope of application of the Rules on Transparency - as well as briefly addressing the content of the Rules, by reference to the deliberations of the Working Group and the Commission, current practice in investment treaty arbitration, and the possible implications for future arbitrations conducted under the Rules on Transparency.
WIPO Arbitration and Mediation Center: New 2014 WIPO Rules; WIPO FRAND Arbitration
Authors: De Castro Ignacio , Wollgast Heike
Published: April 2022

The WIPO Arbitration and Mediation Center (WIPO Center) is a neutral, international and non-profit dispute resolution provider that offers time- and cost-efficient alternative dispute resolution (ADR) options. The mediation, arbitration and expert determination procedures offered by the WIPO Center are widely recognized as particularly appropriate for technology, entertainment and other disputes involving intellectual property. With twenty years of experience handling such disputes, about 40% of the WPO Center's cases involve patents, and 33 % concern information and communication technology.

Effective on June 1, 2014, the WIPO Center amended its Mediation, (Expedited) Arbitration and Expert Determination Rules. Informed by WIPO case experience and the global evolution of ADR practices, the new WIPO Rules introduce several novelties, notably with a view to multiparty arbitration and emergency relief. In a separate development, the WIPO Center recently made available tailored model agreements that companies involved in the telecom industry may use to refer a dispute concerning the fair, reasonable and non-discriminatory (FRAND) terms to WIPO Mediation and (Expedited) Arbitration. Aiming to facilitate cost- and time-effective FRAND adjudication, these model agreements were developed in consultation with patent law, standardization and arbitration experts from various jurisdictions, including the Secretariat of the European Telecommunication Standards Institute (ETSI).
Pour convaincre larbitre
Authors: Gautier Pierre-Yves
Published: April 2022

This paper, given the « Ciceronian » title « To convince the arbitrator », is very unlikely to offer new guidance to international arbitration practitioners, such as lawyers, arbitrators and legal experts, who will themselves have already experienced efforts to convince an arbitrator in arbitral proceedings.

Its humble objective, apart from offering some entry-level instruction to « juniors » about to take their first steps on the way to becoming seasoned professionals in the field, is primarily to record in writing, in a methodological form, what remains today a part of an oral tradition: the methods and experience of all those who engage in the intellectual combat of arbitral proceedings. For teams of lawyers, it also provides an insight into the likely reactions of the arbitrators they appear before, reactions which will not necessarily be those that they expected when they devised their litigation strategy.

This article also has the virtue of systematically comparing Statebased and arbitral proceedings so as to identify and explain their similarities and differences.

Finally, in the spirit of the great French jurist, Jean Carbonnier, this paper aims, by building on sociological considerations, to reflect on the practice of arbitration law and explore ways of making it even more effective.

The study finds a natural division into two parts by focusing on the behaviour of first the lawyer and, second, the witness; the two main protagonists in arbitral proceedings facing private judges whom they must convince using didactic and rhetorical tools.
Rethinking costs and costs awards in international arbitration: a call for less criticism of arbitration costs, but improvement of costs allocation practices
Authors: Czech Konrad , Nowaczyk Piotr
Published: April 2022

If international arbitration wants to sustain its growth, it should always carefully listen to the voice of its participants. The issue of costs, and in particular the issue of costs allocation, definitely deserves more attention than it has been given to so far by arbitral institutions. The true source of the costs conundrum are practices governing costs allocation rather than high costs itself. Legal counsels, just the same as it usually happens before court proceedings, should be able to explain to businessmen what portion of the money invested in pursuing their claim, and under what conditions, they can expect to get back at the end of proceedings. The discretionary costs allocation standards should be reexamined in order to achieve more predictable rules of awarding arbitration costs. If left without an in-depth reflection, in the long run, the current not uniform standards may impede trust in international arbitration as well as obscure many of its undisputed advantages. Consequently, the authors propose to examine the possibility of introduction – or the further improvement, wherever it is already used – of the costs follow the event approach to costs allocation (and perhaps, but not necessarily, directing it towards the “winner-takes-all” rule). Alternatively, participants of each international case should frankly discuss all mechanics of costs allocation at the outset of the arbitral proceedings.
Arbitration and EU Antitrust Follow-on Damages Actions
Authors: Goldsmith Aren
Published: April 2022

This article addresses the subject of whether, when and how EU antitrust follow-on damages actions, which seek civil remedies for harm alleged to have been suffered from the infringement of European antitrust law rules, may be submitted to international arbitration. The article begins by tracing the development of follow-on damages litigation in Europe, and then addresses the anticipated growth of such actions as a result of the EU Damages Directive. Next, the article considers certain procedural obstacles that may be encountered when parties seek to arbitrate follow-on claims. The relevant challenges relate to case law in certain European jurisdictions that has interpreted agreements to arbitrate narrowly in relation to followon claims, and to the complex nature of follow-on actions. Despite such challenges, the article argues that there are reasons why corporate users may prefer to avail themselves of international arbitration in relation to follow-on disputes. The article therefore explores mechanisms for maximizing arbitral options in the follow-on setting, including through drafting techniques, ex post submissions and undertakings before regulators.
Mediation and Arbitration in Vienna  One-Stop-Shop Solution for Parties under the Vienna Rules and the new Vienna Mediation Rules
Authors: Fremuth-Wolf Alice
Published: April 2022

The Vienna International Arbitral Centre (VIAC) possesses more than 40 years of experience in international arbitration and conciliation. Due to the new Vienna Mediation Rules it may now administer not only arbitrations but also mediations and other ADR-proceedings where a neutral third person supports the parties in finding a solution for their dispute as well as combinations like Arb-Med(-Arb).

The new rules entered into force on 1 January 2016 and are applicable to all proceedings initiated after 31 December 2015. The rules have been drafted by national and international mediation experts thus ensuring an exceptional high standard and state of the art solutions.

The overriding principle when drafting the rules was party autonomy. The aim was to provide a functioning framework for parties and mediators alike, but all provisions may be altered by agreement provided their compatibility with the overall idea of the Vienna Mediation Rules is still pertained. As a further incentive for parties to use the new rules, VIAC administrative costs may be off-set in the later proceedings in case of subsequent mediation and arbitration proceedings between the same parties and concerning the same subject-matter in dispute.

With its new Mediation Rules, VIAC is convinced to foster its position as the leading international arbitration institution in Central and Eastern Europe.
The Arbitrators Liability and Immunity Under Swiss Law  Part I
Authors: Smahi Nadia
Published: April 2022

The question of the arbitrator’s liability and immunity under Swiss law is relevant to anyone who currently sits as an arbitrator in Switzerland or is planning on doing so. Part I of this article introduces the matter and sets forth the terminology used and the scope of study. After an analysis of the arbitrator’s status and of the nature of his mission, this article examines the arbitrator’s civil liability on the basis of the arbitrator’s contract. The topic of the arbitrator’s immunity in relation to his civil liability is then entered into through a brief comparative law analysis, in particular in view of the concept of arbitral immunity under United States law and English law. Part II of this article (to be published in ASA Bulletin 1/2017), will analyze the arbitrator’s immunity from his contractual liability under Swiss law and draw general conclusions.
La Cour Arabe dInvestissement : vers une Cour régionale plus efficace
Authors: Alabd Hatem
Published: April 2022

The Unified Agreement for the Investment of Arab Capital in the Arab States (UAIAC) was first signed in 1980, and modified in 2013. The UAIAC includes a chapter on dispute settlement that refers the disputing Parties to the Arab Investment Court (AIC).

The AIC was set up to arbitrate disputes involving states that are members of the Arab League and Arab investors. Some Bilateral Investment Treaties (BIT) concluded by Arab countries refer to the AIC as an arbitration mechanism in the investor-state dispute settlement provisions.

At present, there are thirteen judges and thirteen alternates, each holding a different Arab nationality. The AIC is basically composed of at least five judges, and a number of alternate members – again each holding a different Arab nationality – and with Chambers of not less than three judges to settle the cases submitted. Final awards rendered by state courts in Arab member states are directly enforced by the AIC.

The AIC is a largely unknown regional structure despite its not negligible importance.

The jurisdiction of the AIC, in its present form, is deficient as it does not operate under conditions that conform to the requirements of international standards and, as such, is seriously deficient. As it stands, it seems almost inevitable that the Economic and Social Council of the Arab League should re-examine – in the medium term – the functioning of the AIC. Let us hope that this time the various actors involved in the reform will sufficiently anticipate the resulting changes in order to achieve a systematic and far-reaching outcome.
Tax Arbitration under the BEPS Convention. An Overview and Potential Pitfalls from a Swiss Perspective
Authors: Schmid Patrick
Published: April 2022

On 7 June 2017, Swiss representatives signed the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (“BEPS Convention”). Once in force, the BEPS Convention will amend 14 of Switzerland’s double taxation agreements and implement, among other measures, an arbitration dispute resolution procedure. Where two contracting states are unable to reach an agreement within a certain timeframe, the affected taxpayer can initiate an arbitration procedure on any unresolved issues.

The article provides background information, gives an overview over the arbitration procedure under the BEPS Convention while highlighting potential pitfalls from a Swiss perspective.
Fehlende Schiedsfähigkeit zwingender arbeitsrechtlicher Ansprüche im Binnenverhältnis Anmerkungen zu BGE 4A_7/2018 vom 18. April 2018
Authors: Casey Angela
Published: April 2022

In a new landmark decision (4A_7/2018 of 18 April 2018), the Swiss Federal Supreme Court revisited its earlier decisions regarding the subject-matter arbitrability of domestic employment law disputes. In line with an earlier decision, the Court held that a domestic employment law dispute cannot be brought before an arbitral tribunal if it concerns mandatory claims according to Articles 361 and 362 of the Swiss Code of Obligations. However, mandatory claims in employment law are numerous and cover, for example, all claims in connection with an employee’s termination, overtime, and reference letters. The Court considered that employees cannot waive these mandatory claims during the contractual relationship and 30 days thereafter (according to Article 341 para. 1 of the Swiss Code of Obligations). With this decision the Federal Supreme Court now clearly confirmed that an employee living in Switzerland requires specific protection which can only be provided by the national courts.
L« étape préalable » dans le nouveau droit de larbitrage et de la médiation OHADA
Authors: Gidoin Anne-Sophie
Published: April 2022

The new Uniform Arbitration Act, the new Rules of Arbitration of the Common Court of Justice and Arbitration (Abidjan) and the new Uniform Mediation Act, adopted by the Council of Ministers of 17 OHADA Member States of Western and Central Africa, entered into force on 15 March 2018. All three texts expressly grant arbitral tribunals the power to suspend the arbitral proceedings, if a party rightfully claims noncompliance with a mandatory pre-arbitral procedure, as may be imposed by a multi-tier dispute resolution clause. In that case, the non-compliance can be cured without the arbitral tribunal having to dismiss the claims as non being (yet) admissible.

Article 8-1 of the revised Uniform Arbitration Act, Article 21-1 of the revised Arbitration Rules of the Common Court of Justice and Arbitration, and Article 15 of the Uniform Mediation Act allow an arbitral tribunal to fix a time limit for the parties to comply with the pre-arbitral procedure, after which the arbitral proceedings will resume, unless the parties were indeed able to settle their dispute. This truly innovative provision is one of the first of its kind in modern arbitration law worldwide. It addresses in a pragmatic cost-effective manner the growing number of objections (as to the tribunal’s jurisdiction and/or the admissibility of the claims) related to the issue of compliance with mandatory pre-arbitral steps in multi-tier dispute resolution clauses.
Multidimensional Thinking about the Soft Laws Phenomena in International Commercial Arbitration: A Chinese Perspective
Authors: Wang Hui
Published: April 2022

The arbitration regime is a multidimensional system. Together with ‘hard laws’, ‘soft laws’ are also inalienable components of the arbitration regime. ‘Soft laws’ are non-state enacted texts, which aims at regulating procedural issues in international commercial arbitration. Although ‘soft laws’ are not legally binding, they are of some normativity. ‘Soft laws’ cover various arbitration topics, ranging from arbitration law harmonization, arbitration evidence, arbitration ethics and arbitration management skills to the latest arbitration developments. The functions of ‘soft laws’ are evidenced therefrom. The history of arbitration, global governance, and social interrelation all help to explain why ‘soft laws’ are created, developed and somewhat complied with. Facing the difficulties in modifying the 1995 Chinese Arbitration Law and the rapid developments of the Chinese arbitration market, it is time to shift minds from the ‘hard law approach’ to the ‘soft law approach’. China is suggested to establish more robust arbitration community, to participate more in ‘soft laws’ enactment, to enact its own ‘soft laws’ regime, to enhance the cooperation among ‘hard laws’ and ‘soft laws’, and to wisely take advantage of the functions of ‘soft laws’.
Brazilian Special Appeal no. 1.639.035-SP, 18 September 2018, Paranapanema S/A vs/ BTG Pactual S/A and Santander Brasil S/A
Authors: Silveira Gustavo Scheffer da
Published: April 2022

In connected contracts, the parties enter into a plurality of legal transactions for the purposes of an economic unity, creating real dependency among them.

Having identified the existence of connected contracts, the extension of the arbitration clause contained in the main contract to the “swap” agreements becomes possible, since they form a single economic transaction.

In the system of connected contracts, the contract considered to be the main contract determines the rules that shall be followed by the other agreements that are connected to it. It is not reasonable to consider that an arbitration clause contained in the main contract does not extend its effects to the others.
Proximate Approaches and Dietetic Comparison of Bt and Non Bt (Basmati) Rice Samples
Authors: Alam Ayesha , Anum Faiza , Jabeen Khajista , Javed Zeeshan , Khan Saira , Kabir Shoaib , Raza Shahid
Published: April 2022

Trend of GM crops has drastically amplified since couple of years. Global production status has shown that over 52 million ha in urban areas is comprised of GM crops. Apart from economic importance and future demands, there is a huge concern regarding nutritional content of genetically engineered plants. Amongst all, Bt rice is well-known as a domestic cereal and its increased demand has forced to enhance the rice production. Pest attack has reduced rice production that is why Bacillus thuringiensis variety of rice has been introduced. The current research has been conducted to equate dietetic measures of Non Bt basmati with Bt variety that both are cultivated in Pakistan’s agricultural land. Proposed protocol for proximate analysis was AOAC method where statistically analyzed studied parameters (fat, fiber, ash, protein, moisture) illustrated HO is less than P value that proposed minor alterations in proximate configuration of both rice varieties such as (fat 2.90%, fiber 2.20%, ash 3.10%, protein 9.20%, moisture 10.80%) in Bt Rice While (fat 2.65%, fiber 2.40%, ash 2.80%, protein 9.30%, moisture 11%) in Non Bt Rice. Visible difference was found in result of elemental analysis of two varieties. Elemental content such as Ca 0.013, Mg 023, were less in Bt rice in contrast to Basmati (non Bt) rice. During the present study it was concluded that foreign gene insertion cannot affect proximity of variety but it can change elemental content of rice variety.
Characterization of Halophilic Isolates Producing Bioactive Metabolites Against Pathogens
Authors: Jamil Nazia , Latif Arshia , Nasir Kiran , Fatima Noor
Published: April 2022

Halophiles are salt loving microorganisms that are able to survive in high salt conditions. Halophiles are highly diverse group belongs to all three domains of life, Archaea, bacteria and Eucarya. Halophiles adapted themselves through various strategies to maintain their osmotic balance in order to survive in high salt concentrations. Likewise halophiles are also able to produce bioactive molecules such as carotenoids, polyhydroxy-alkanoates, ectoine, bioplastics, and enzymes that have commercial importance. In current study halophiles were isolated at 1M NaCl concentration and characterized, and check its antibacterial activity against pathogenic E.coli, Pseudomonas aeruginosa and Klebsiella pneumonae. Two halophilic strains showed activity against pathogenic E.coli and Klebsiella pneumonae only. Antimicrobial activity was further analyzed through disc diffusion method and by using extracted filtrate. The activity only observed against E.coli after 48 hours old cultures that were served as filtrate extracts and discs against. Furthermore optimization as well as detailed characterization of the secondary metabolites will be needed to find the source of antibacterial metabolites against specific pathogens.
In vitro Antifungal Activity of Onion (Allium cepa) Subsequent to Various Fungi
Authors: Akhtar Urooj , Iqbal Sana , Khan M. Amjad , Siddique Shoaib
Published: April 2022

Allium cepa is a medicinal herb of therapeutic importance. It has been employed as, a food remedy, an agent responsible to strengthen the immune system against chronic diseases. Allium cepa has been frequently highlighted for its abundant flavonoid quercetin and organo-sulfur compounds. It is a vegetable found in every household and is of routine use. Allium cepa can be effective against several infections. The current study was conducted to evaluate the antifungal activity of fresh juice of onion against Aspergillus niger and Aspergillus oryzae using the disc diffusion method and its efficacy was compared with the that of commercial antifungal drugs i.e., Amphotericin B (100μg) and Nystatin (100μg). The results indicated that onion has antifungal activity against various fungi but more active against Aspergillus oryzaea rather than that of antifungal drugs used.