bluuebunny/crossref_metadata_2025 huggingface dataset:
III Trust Arbitration as a Matter of National Law, 9 Donative Trusts and the United States Federal Arbitration Act
Authors: David Horton
Published: June 2017

This chapter considers whether and to what extent internal trust arbitration falls under the auspices the Federal Arbitration Act (FAA). It begins by comparing the evolution of contractual arbitration under the FAA to trust arbitration under state law. It then explains why these parallel developments are on a collision course. Specifically, it argues that some arbitration provisions in trusts trigger section 2 of the FAA because they arise from contract-like instruments that affect commerce and because the parties’ conduct gives rise to an implicit agreement to arbitrate. Finally, the chapter addresses two thorny problems that are likely to emerge in trust arbitration under the FAA: how to handle the in rem nature of some trust matters and the role of delegation clauses in trusts.
III Trust Arbitration as a Matter of National Law, 11 The Removal of Trustees by Arbitration: Australia and England
Authors: Daniel Clarry
Published: June 2017

This chapter analyzes the supervisory function of the court in trust litigation and describes the extent to which that role can be fulfilled by arbitrators. It uses the Rinehart case as an example, in which a family feud over a trust holding assets valued at upwards of AU$9 billion generated a dispute regarding the removal of Gina Rinehart as trustee in which issues arose as to the applicability and validity of an alternative dispute resolution (ADR) clause. It argues that disputes concerning the removal of trustees can be submitted to arbitration whilst preserving the Court’s distinct supervisory jurisdictions over arbitration and trust administration as means to different ends. Whilst a supervisory jurisdiction is attached to arbitration, thereby facilitating the enforcement of arbitral awards, a distinct supervisory jurisdiction over trust administration is preserved that facilitates the ongoing performance of the trust above and beyond arbitration.
III Trust Arbitration as a Matter of National Law, 15 Singapore: Trust Disputes and Arbitration
Authors: Tang Hang Wu , Paul Tan
Published: June 2017

This chapter examines the question of the arbitrability of trust disputes in Singapore. In so doing, it discusses various issues which are said to present obstacles to the arbitration of trust disputes, and their applicability and relevance in the Singapore context. These are: whether an arbitration clause in a trust deed is considered to be an agreement to arbitrate; whether arbitrations are impermissible for ousting the courts’ jurisdiction; whether a clause in a trust which purports to be an arbitration agreement can bind the beneficiaries of a trust; whether arbitration can satisfy the requirement for proper representation of unascertained, unborn and legally incompetent beneficiaries; and whether trust disputes are inherently arbitrable. It shows that at least for disputes between beneficiaries and the trustee of a donative trust, there is some uncertainty whether a clause referring matters to arbitration is binding on the beneficiaries.
III Trust Arbitration as a Matter of National Law, 16 Trust Arbitration in New Zealand
Authors: Tony Molloy
Published: June 2017

This chapter discusses the practical problems that arise in New Zealand as a result of the absence of any statutory authority regarding trust arbitration. The analysis includes numerous comparative references to case law and commentary from both Australia and England so as to help illuminate the issues facing New Zealand and identify potential solutions. It is argued judicial misallocation is the only real problem with New Zealand trust law. This issue is a particular worry for offshore settlors of New Zealand trusts, since they have every reason to be thinking of exporting those trusts to trustees in more enlightened jurisdictions. It is hoped that calls for the end of the current misguided regime will be heard before too many more years shall have elapsed and before too much more offshore business shall have been lost.
V Concluding Thoughts, 22 The Future of Trust Arbitration: Quo Vadis?
Authors: SI Strong
Published: June 2017

This chapter presents a cross-disciplinary and cross-cultural analysis that attempts to bring together the various strands of discussion and identify how internal trust arbitration is likely to develop in the coming years. It argues that internal trust arbitration appears to be on the rise in a number of jurisdictions, with support coming from both the public and private sectors. While much remains to be done as a matter of both practice and policy, the breadth and the depth of interest in this particular procedure is very promising. If internal trust arbitration is to become a viable mechanism domestically and internationally, the legal community needs to balance the needs and best practices of both trust law and arbitration law. To achieve this outcome, experts in both arbitration law and trust law need to work together rather than in isolation.
Who’s Afraid of MiFID II?
Authors: Busch Danny , Ferrarini Guido
Published: June 2017

This chapter provides a summary and overview of the chapters of this book, after first briefly outlining the history of the European regulation of investment firms and regulated markets, followed by a treatment of the central term ‘investment firm’.
The Scope of MiFID II
Authors: Lieverse Kitty
Published: June 2017

In this chapter the main changes to the scope of MiFID in MiFID II are listed and discussed. MiFID II changes the scope of the supervision of investment firms and business related to this industry. The revision and—in some cases—extension of the definition of ‘financial instrument’ affects the scope of MiFID II supervision. Advisory and distribution services for structured deposits by investment firms and credit institutions have been brought within the scope of MiFID II. The scope of some exemptions to MiFID II has been revised. The broader scope of MiFID II has an effect beyond the applicability of MiFID II regulation: the prudential requirements are as a starting point linked to the MiFID II qualification, although with specific exemptions. Linking prudential supervision to the MiFID II qualification, rather than to the prudential risk profile of the underlying services and activities, is subject to review and reconsideration.
Governance of Investment Firms Under MiFID II
Authors: Binder Jens-Hinrich
Published: June 2017

In response to widespread concerns about the quality of governance arrangements in financial intermediaries as a source of systemic risk, the revised framework for the regulation of investment services in the EU has reinforced the governance requirements that have been in place for a long time, and increased significantly their complexity and intensity. Investment firms, subject to both the CRD IV and the MiFID II, must now comply with numerous regulatory requirements. While the underlying policy—to address systemic implications of financial intermediation irrespective of the business model—is consistent, the equal treatment of banks and investment firms under broadly identical regulatory frameworks, albeit with additional requirements imposed by MiFID II, is nonetheless questionable, in view of the diversity of existing business models and activities. Starting with an analysis of the underlying history and policy of the new approach, this chapter seeks to identify potential weaknesses and implications for its implementation.
The Overarching Duty to Act in the Best Interest of the Client in MiFID II
Authors: Enriques Luca , Gargantini Matteo
Published: June 2017

This chapter analyses the scope, contents, and implications of MiFID II’s new framework as regards the duty to act in client’s best interest. It considers the duty as an autonomous source of obligations for investment firms and as a guidance principle for both EU bodies in charge of implementing MiFID II and judges and supervisory authorities interpreting more specific duties. It also discusses the implications of extending the duty to intrinsically at arm’s length activities such as dealing on own account and self-placement.
Independent Financial Advice
Authors: Giudici Paolo
Published: June 2017

The quickest policy indication for increasing households’ trust in financial markets, to the benefit of the economic system, seems to be the offer of professional financial advice on affordable terms. The problem is how to convince investors to pay for advice, and how to protect investors who do not want to pay for advice from conflicted advice and from hard sell under the guise of personal recommendation—an area where MiFID I has not performed well. MiFID II’s answer is to pose a new set of information duties on financial advisors with the clear intention of nudging investors towards independent, fee-only advice. The intention is good. However, the new regime raises many important issues, including the ambiguity of the ‘independent’ suit, the interaction between the product governance regime and the suitability assessment, the regulatory inconsistency that it is emerging between investment advice and portfolio management, and the potential costs of the written statement of suitability.
MiFID II/MiFIR’s Regime for Third-Country Firms
Authors: Busch Danny , Louisse Marije
Published: June 2017

This chapter examines the scope of MiFID II/MiFIR’s regime for third-country firms. It explains MiFIR’s regime for third-country firms and MiFID II’s regime for third-country firms. It discusses the friction between both regimes in case a third-country firm provides investment services to eligible counterparties, professional clients, and retail investors. Next, it takes a detailed look at the initiative test. The conclusion sets out the provisions of MiFID II/MiFIR’s third-country regime.
Commodity Derivatives
Authors: Alibrandi Antonella Sciarrone , Grossule Edoardo
Published: June 2017

This chapter considers the MiFID II/MiFIR regulation of the commodity derivatives sector, one of the areas most affected by the financial markets reform process, particularly the MiFID I review. It analyses the position limits regime, and the new rules amplifying the regulatory and supervisory powers of ESMA, of national competent authorities (NCAs) and trading venues, which introducing a range of interventionist tools that can affect operators’ investment business. The chapter also stresses the need to introduce a specific regulation depending on different commodity derivatives. The main provisions and the specific technical standards are analysed, paying particular attention to controversial measures such as the definition of the ancillary activities, the methodology to calculate the position limits, and the authorities’ new powers.
Algorithmic Trading and High-Frequency Trading (HFT)
Authors: Conac Pierre-Henri
Published: June 2017

This chapter analyses the MiFID II rules on algorithmic trading (AT), including high-frequency trading (HFT). The author argues that AT raises serious issues of volatility and systemic risk, and HFT issues of systematic front-running of investors. However, opinions are divided on the benefits and risks of these techniques, especially HFT. MiFID II takes a technical approach mostly focused on prevention of a repeat of the 2010 ‘Flash Crash’ with provisions on market abuse. The ESMA 2012 Guidelines remain the most effective regulation to frame the development of HFT, able to tackle market developments with relative speed. However, with implementation of the directive still far away, prosecution of market abuse among HFT traders by legislators and supervisors could lead to a de facto ban of HFT in some Member States. However, the author argues that supervisors would need to allocate scarce resources to it, at great cost, and only the most motivated supervisors will do so.
MiFID II and Equity Trading
Authors: Fox Merritt B
Published: June 2017

This chapter provides a U.S. perspective on the MiFID II equity trading regulation. The author concludes that a comparison of the EU and U.S. market structure rules, and the concerns that generated them, suggests four three key differences. Relative to the United States, the EU shows (i) more concern with having an effective price formation process, (ii) more concern with the possibility that HFTs contribute to price instability and engage in market abuse, (iii) less concern with promoting competition among trading venues. These differences have characterized the MiFID I era and are reflected in MiFID II as well, although MiFID II does evince somewhat greater concern about competition among trading venues than was true before.
Public Enforcement of MiFID II
Authors: Gortsos Christos V
Published: June 2017

This chapter systematically assesses the provisions of MiFID II (Articles 67-88) on supervision, enforcement, and cooperation by competent authorities. It addresses the role of Member States’ competent authorities within the MiFID II regime, with particular emphasis on the competent authorities’ supervisory powers, their power to impose administrative sanctions and measures, as well as criminal sanctions, and redress procedures. It considers cooperation arrangements between Member States’ competent authorities, the obligation to cooperate with the ESMA, and cooperation with third countries. Finally, these rules are briefly assessed on the basis of three elements pertaining to financial supervision, which, in the author’s view, are essential for the preservation of financial stability and the attainment of other goals underlying (public) capital markets law, and which are addressed by MiFID II’s provisions: micro-prudential supervisory effectiveness, the efficient and unobstructed exercise of competent authorities’ sanctioning powers, and the effectiveness of supervisory cooperation arrangements.
Explaining Arbitration Law
Authors: Park William W
Published: June 2017

This chapter considers the challenges in explaining arbitration law. Unlike most fields of law that provide guidance on how courts decide cases, arbitration law tells judges when not to decide disputes, in deference to private decision-makers selected by the litigants. However, if one side regrets a decision to arbitrate, or the parties diverge about what the arbitration clause covers, courts may be asked to assist in implementing the arbitration agreement or resulting award. At such moments, arbitration law normally includes two limbs: first, to hold parties to their bargains to arbitrate; second, to monitor the basic integrity of the arbitral process, so the case will be heard by a fair tribunal that listens before deciding, stays within its mission, and respects the limits of relevant public policy. The chapter then discusses case studies that illustrate two issues that persistently vex courts and commentators: allocating tasks between judges and arbitrators; and determining what law applies to an arbitration clause.
How Easy is it not to Take Adequate Care of the Proper Expectations of the Parties?
Authors: Rubino-Sammartano Mauro
Published: June 2017

This chapter argues that arbitrators must pay sufficient attention to the legitimate expectations of parties. In line with this, it surveys possible-or even involuntary-breaches of the expectations of the parties. It discusses common problems such as not allowing sufficient time to the proceedings; not allowing the parties to present their case adequately; the temptation to rush; effects of disliking counsel; and lack of a full de novo review. It concludes that the approach of many arbitrators is to render an award which would produce for them respect or even admiration, or the wish, at least in Continental Europe, to write a brilliant intellectual treatise. However, this is not an expectation of the parties. While some parties just wish to always win, in particular when they know they are wrong, the innocent party, the honest man or woman, expects that the arbitrator will decide the dispute with diligence and humanity.
Silent Talk
Authors: Young Michael
Published: June 2017

Language is a fundamental part of legal practice: without it, lawyers cannot function. But despite its importance, the applicable language is addressed rarely in a dispute resolution clause. Given its potent impact, the parties often disagree over which language (or languages) should apply where the clause is silent. This chapter considers the tools available to an arbitral tribunal to identify the language of the arbitration and to maintain the applicable language of the proceedings, while affording the parties flexibility in how they present their cases and ensuring that the matter proceeds efficiently. As with all discretions, this exercise must be carried out properly and fairly. In reaching their decisions, tribunals should not be confined by strict presumptions or priorities; they must assess all of the available indicia, weighing each element in the balance.
Is International Arbitration Becoming Too Confrontational and Counter-Intuitive? And Some Guidelines as to How Not to Irritate a Tribunal!
Authors: Heilbron Hilary
Published: June 2017

International arbitration is becoming increasingly fractious, ill-tempered, and combative, as each side deploys tactics to argue its case. All too frequently, lawyers lose sight of the fact that it is the tribunal whom they need to win over to their cause. Aggravating a tribunal, whether by aggressive and combative advocacy or by an ill-presented case, is counter-productive. This chapter addresses the causes of this growing tendency and how to deal with it from the perspective of both oral and written advocacy and presentation. It suggests that the real problem is a developing culture of using the arena of arbitration as a stage to play out the parties’ anger against each other, using their lawyers as the means to do so. As a response, tribunals, in the first procedural order for the hearing, or appended to it, need to lay down some basic rules.
Ethics in Arbitration
Authors: Hacking Lord , Berry Sophia
Published: June 2017

The problem of party misconduct in international arbitration is on the rise, as evidenced by the level of attention this issue has attracted from practitioners and institutions, as well as scholars, at recent conferences, and in articles, books, and blog posts. This chapter first explores the forms of party misconduct and the steps arbitral institutions and practitioners need to take in order to curb misconduct. Party misconduct can include: attempts to stop hearings progressing; abuse of the document disclosure process; discourteous behaviour; acts to surprise the opposition; applications for anti-arbitration injunctions and other approaches to national courts; issues of ex parte communications; and witness tampering. The remainder of the chapter considers the means by which arbitrator misconduct should be tackled.
Cross-Examination of Fact Witness Statements in International Arbitration
Authors: Newman Lawrence W
Published: June 2017

This chapter discusses cross-examination of witness statements in international arbitration. The direct testimonies of witnesses in international arbitration are increasingly being presented in the form of their written statements-called ‘witness statements’. Some witness statements can be fairly innocuous, perhaps referring to or commenting on documents in the record. Others, however, not only touch on certain subject-matter areas, leaving out areas that are harmful to a party’s case, but they may also distort accounts of certain meetings or other events, or even lie about them. Such statements, if left alone and taken seriously by the tribunal, have a deleterious effect on the case of the opposing party, and must therefore be dealt with by assessing the ways in which a harmful statement by a fact witness may be responded to.
Oaths and Perjury
Authors: Sheppard Audley
Published: June 2017

This chapter discusses the law and practice of oaths and affirmations in international arbitration, particularly in England and Wales. These include the Oaths Act 1978, which provides details of the wording to be spoken while swearing an oath or making an affirmation; the Perjury Act 1911, which prescribes sanctions for not telling the truth; section 38(5) of the English Arbitration Act 1996, which provides that the arbitral tribunal has the power to direct that a party or witness shall be examined on oath or affirmation, and may for that purpose administer any necessary oath or take any necessary affirmation; the 1998 LCIA Rules on the testimony of a witness; and Article 54(d) of the 2014 WIPO Arbitration Rules, which provide that the testimony of witnesses may, either at the choice of a party or as directed by the tribunal, be submitted in written form, whether by way of ‘signed statements, sworn affidavits or otherwise’.
Inherent and Implied Powers of Arbitrators
Authors: Moses Margaret L
Published: June 2017

The powers of arbitrators in international commercial arbitration are based on the agreement of the parties, usually set forth in an arbitration clause contained in a contract between the parties or in a separate agreement to arbitrate. Increasingly, however, arbitrators are exercising powers that are not derived specifically from a party agreement, but rather may be implied or inherent. The terms ‘implied’ and ‘inherent’ are frequently used rather loosely, and sometimes interchangeably. This chapter develops a framework for understanding and using the terms, so that parties, arbitrators, and courts can employ common meanings and concepts when considering arbitral powers. Implied and inherent powers, properly exercised, can help ensure that the arbitral process fulfils its promise of providing a fair, ethical, and reasonable way to resolve disputes.
Improving Judicial Performance in Matters Involving International Arbitration
Authors: Strong SI
Published: June 2017

This chapter focuses on the issue of judicial competency in international arbitration. Participants in international arbitration often view national courts as the ‘weak link’ in the chain of arbitral practice and procedure. Although parties can and often do contract in advance for experienced arbitrators and efficient procedures, all of that planning and forethought can come to naught if a judge refuses to enforce an arbitration agreement or award. Recalcitrant courts are often branded as parochial, a move which suggests that the judges in question know what the proper course of action is, but simply prefer to protect national interests or parties. However, what appears to be a conscious desire to thwart the international arbitral regime could actually be nothing more than a judicial misunderstanding of a particularly complex area of law. The remainder of the chapter discusses structural and educational efforts of states to improve judicial decision-making.
Agency
Authors: Munday Roderick
Published: June 2017

Questions of agency regularly arise in the work of commercial practitioners. This book provides a reference guide to the main principles of agency law, including detailed explanation of the Commercial Agents (Council Directive) Regulations of 1993. Analysis of case law is combined with a practical approach to the law which accurately reflects modern commercial realities, considering the application of agency principles according to particular classes of agents operating in the major commercial sectors. It includes discussion of the actual authority and apparent authority of an agent, agency of necessity, warranty of authority and ratification, looking at the legal relations between principal and both agent and third parties, as well as the relations between agent and third party, sub-agency, and termination of agency. This book emphasizes contemporary case law, and has been fully revised and updated in response to significant recent developments.
The Actual Authority of the Agent
Authors: Munday Roderick
Published: June 2017

This chapter is an overview of the ‘actual authority’ of the agent. ‘Actual authority’ refers to authority the agent possesses either because the principal has expressly conferred that authority upon the agent (‘express actual authority’) or because the law regards the authority as having been conferred upon the agent by necessary implication (‘implied actual authority’). It is famously defined as a legal relationship between principal and agent created by a consensual agreement to which they alone are parties. As a practical matter, the ‘actual authority’ of an agent is customarily contrasted with an agent’s ‘apparent authority’—that is to say, the legal relationship as between principal and third party created by a representation, made by the principal to a third party, intended to be and in fact acted upon by the latter. The chapter then goes on to elaborate the pertinent elements of express and implied actual authority.
Apparent Authority
Authors: Munday Roderick
Published: June 2017

This chapter describes ‘apparent authority’—otherwise known as ‘ostensible authority’. It arises when a third party is induced to enter into a transaction with a principal by a party who appears to have authority to act but who in fact lacks such authority. It is not authority, as such. Rather, the law gives effect to the appearance of authority, despite the fact that in reality there is no actual authority to act. The appearance may be created by the principal’s specifically misrepresenting to third parties that the agent enjoys authority to perform certain acts or by the principal’s allowing third parties to infer that the agent has the authority that such an agent would usually possess. In contrast to actual authority, the doctrine of apparent or ostensible authority is generally agreed to be based on estoppel by representation.
Authority Deriving from Agency of Necessity
Authors: Munday Roderick
Published: June 2017

This chapter considers agency in situations where one party has acted on behalf of another in the course of an emergency—so-called ‘agency of necessity’. This occurs when one party (the ‘agent’) is confronted with an emergency that poses such an imminent threat to the property or other interests of another person (the ‘principal’) that there is insufficient time for the former to seek the latter’s authority or instructions before acting. The ‘agent’ elects to act for the benefit of the ‘principal’, without prior authority, in order to preserve or protect that person’s property or interests. However, not all cases falling within the designation ‘agency of necessity’ can be considered true cases of agency. Hence the chapter emphasizes the distinction between true cases of agency of necessity, and what is termed ‘necessitous intervention’.
Legal Relations Between Principal and Third Party
Authors: Munday Roderick
Published: June 2017

This chapter considers how and when direct contractual relations are created. The primary purpose of agency is to bring principals and third parties into such relations. In the first section, disclosed agency is considered—that is, situations in which the third party is aware of the existence of a principal, whether that principal is identified or not. The second section deals with the more anomalous situation, where the agent acts for a principal whose very existence is concealed from the third party. Finally, the third section explores two exceptions to the principle, nemo dat quod non habet and the provisions of the Factors Act 1889, which permit ‘mercantile agents’ under the Act to make unauthorized dispositions of their principal’s property to third parties.
The Tortious Liabilities of Principal and Agent
Authors: Munday Roderick
Published: June 2017

This chapter examines the personal liabilities incurred by both principals and agents for the torts they commit. An agent is personally liable for torts committed in the course of the agency that occasion damage to a third party, irrespective of whether the agent was acting within or outside the principal’s authority. The tortious liability of the principal is more varied. A principal is personally liable for torts which the agent has been authorized to commit. In addition, the principal is also vicariously liable for torts committed by the agent in the course of employment. Finally, as in the case of master and servant, when the principal is liable for the tortious acts of the agent, technically principal and agent are joint tortfeasors and enjoy rights of contribution against one another under the Civil Liability (Contribution) Act 1978. The chapter looks at common forms of tortious liability affecting agency.
Introduction
Authors: Gallus Nick
Published: June 2017

This introductory chapter presents a brief overview on the temporal jurisdiction of international tribunals, as well as the aims and structure of this volume. The period of an international tribunal’s temporal jurisdiction (jurisdiction ratione temporis) is the span of time during which an act must have occurred before the tribunal may consider if the act breached an international obligation. Together with subject matter jurisdiction, personal jurisdiction, and territorial jurisdiction, the temporal jurisdiction of an international tribunal delineates its powers. Despite its importance, however, the temporal jurisdiction of international tribunals is not well understood. No work has comprehensively addressed the different limits on a tribunal’s temporal jurisdiction and how these limits interact. This chapter shows how the rest of this volume seeks, first, to reduce confusion by clarifying the different limits on the temporal jurisdiction of international tribunals, and the important distinctions between those limits and, secondly, to determine the extent to which tribunals created under different treaties have exercised their discretion over temporal jurisdiction in common ways.
Temporal Jurisdiction over Acts Outside the Period that the Obligation Allegedly Breached is in Force
Authors: Gallus Nick
Published: June 2017

This chapter considers what powers tribunals have over acts before the entry into force of the obligation that is alleged to be breached. While few states have expressly addressed this issue when conferring jurisdiction on a tribunal, the chapter explains that tribunals have broadly agreed that general principles of law, and possibly customary international law, prevent them from finding a breach of an obligation through an act before the obligation entered into force unless they have been directed otherwise.
Temporal Jurisdiction over Acts before the Acceptance of a Tribunal’s Jurisdiction
Authors: Gallus Nick
Published: June 2017

This chapter examines the wording and effect of provisions that limit tribunals’ jurisdiction over acts before the creation of the tribunal or subsequent acceptance of its jurisdiction. The chapter also examines the temporal jurisdiction of tribunals over such acts in the absence of such provisions.
Temporal Jurisdiction over Acts before the Period of Limitation
Authors: Gallus Nick
Published: June 2017

Regardless of the date of entry into force of the obligation allegedly breached, or of the acceptance of its jurisdiction, a tribunal might not hear a claim if it was brought too long after the challenged act, commonly referred to as a ‘time limit’ or ‘time bar’ on a claim, or an application of a ‘statute of limitations’. This chapter addresses the effect of treaty provisions that prevent a tribunal from hearing delayed claims. It addresses the effect of all such provisions, even though some affect the admissibility of a claim rather than the tribunal’s jurisdiction. The chapter then examines whether, in the absence of a treaty provision that limits a tribunal’s ability to hear a delayed claim, general principles of law impose a similar restriction.
Prologue
Authors: Calnan Richard
Published: June 2017

This chapter explains the nature of the interpretative process, why the book is concerned with principles (rather than rules), why contractual interpretation is important in practice, and competing approaches to contractual interpretation.
Principle 6
Authors: Calnan Richard
Published: June 2017

This chapter considers how ambiguous phrases are interpreted. It discusses the basic principle that, if words are ambiguous in their context, they are given the meaning the parties are most likely objectively to have intended. The chapter considers what we mean by ‘ambiguity’, and discusses how it is resolved. It contains examples of the way in which these issues have been dealt with in practice. It also discusses the contra proferentem rule.
United States of America
Authors: Möckesch Annabelle
Published: June 2017

This chapter presents the federal law on attorney–client privilege and work-product protection in the United States. Attorney–client privilege being a defence to document production, witness examination, and other methods of taking evidence should not be presented isolated from the context in which it arises. In order to properly understand the privilege law of the United States, this chapter commences by briefly outlining the course of a lawsuit and the taking of evidence with a particular focus on document production and witness examination.
Comparison—Similarities and Differences in the Laws on Attorney–Client Privilege
Authors: Möckesch Annabelle
Published: June 2017

This chapter compares the attorney–client privilege laws set out in the previous chapters. More specifically, it compares the following main features of the privilege: its purpose and rationale, its invocation, its scope (ratione personae, ratione materiae, and ratione temporis), exceptions to it, waiver of it, and work–product protection. It thereby identifies similarities and differences between the privilege laws in the reviewed jurisdictions and, in addition, examines the reasons for such differences.
Devising Rules for Attorney–Client Privilege in International Arbitration
Authors: Möckesch Annabelle
Published: June 2017

This chapter first discusses whether devising further rules for attorney–client privilege in international arbitration is desirable. In examining the legal framework governing the conduct of international arbitration proceedings, it has become apparent that there is a lack of rules defining the scope of attorney–client privilege or providing sufficient guidance on how to determine the applicable standard. After having come to the conclusion that a change to the current legal framework is preferred over maintaining the status quo, the chapter proposes rules for attorney–client privilege in international arbitration. The discussion contained in this part includes identifying the appropriate type of rules and devising the content of the proposed rules. Finally, the chapter considers the selection of an appropriate legal instrument to implement these rules.
Brussels
Authors: Hollander Pascal , Draye Maarten
Published: June 2017

This chapter evaluates the merits of Brussels as a venue for international arbitration proceedings. It discusses the history and development of arbitration in Belgium; the processes and rules involved as well as the role of courts in the conduct of arbitration proceedings; and rules for arbitral awards. It concludes that the revision of the Belgian Law on Arbitration (BLA) based on the United Nations Commission on International Trade Law (UNCITRAL) Model Law in 2013 has resulted in a modern, state of the art, and progressive arbitration law, which is characterized by flexibility and demonstrates the will of the Belgian legislator to provide an efficient framework for a modern business environment within which arbitration can proceed in the best possible circumstances. The geographical position of Brussels, its status as an international administrative and business center, and the relatively low cost of arbitrating in Brussels further explain why it is increasingly chosen as a seat for arbitration.
Buenos Aires
Authors: Garro Alejandro M , Fernández Michael
Published: June 2017

This chapter evaluates the merits of Buenos Aires as a venue for international arbitration proceedings. It discusses the history and development of arbitration in Argentina; the processes and rules involved as well as the role of courts in the conduct of arbitration proceedings; and rules for arbitral awards. It concludes that arbitration in Argentina has its pitfalls, especially in light of the negative perception of arbitration brought about by numerous investor complaints against Argentina and the fact that the country continues to operate with an obsolete statutory framework in matters of arbitration in general, with very little attention paid to the singularity of international commercial arbitration. Arbitration law in Argentina fails to embrace a positive approach towards the enforcement of domestic as well as foreign arbitration agreements and arbitral awards.
Cairo
Authors: Hafez Karim
Published: June 2017

This chapter evaluates the merits of Cairo as a venue for international arbitration proceedings. It discusses the history and development of arbitration in Egypt; the processes and rules involved as well as the role of courts in the conduct of arbitration proceedings; and rules for arbitral awards. It concludes that Cairo has become an attractive venue for international commercial arbitration since the promulgation of the Arbitration Act, inspired by the United Nations Commission on International Trade Law (UNCITRAL) Model Law. The Egyptian courts are generally favorable to arbitration. They exercise minimal control over awards in actions for setting aside. The desirability of Cairo as a venue for international arbitration is further enhanced by the existence and activities of the Cairo Centre, which administers proceedings at very competitive rates compared with other arbitral institutions, and regularly updates its rules to reflect best international arbitration practices. The Centre also offers all the facilities required in connection with modern arbitration proceedings.
Dublin
Authors: Reichert Klaus
Published: June 2017

This chapter evaluates the merits of Dublin as a venue for international arbitration proceedings. It discusses the history and development of arbitration in Ireland; the processes and rules as well as the role of courts in the conduct of arbitration proceedings; and rules for arbitral awards. It concludes that Dublin should be considered as a low-cost alternative to London, with many of the same advantages, but at lower cost. Ireland is also a party to the New York Convention; has passed a new Arbitration Act (2010), which is a virtually pure form of the United Nations Commission on International Trade Law (UNCITRAL) Model Law; provides for a dedicated arbitration judge in the High Court, and there is no appeal from the High Court on arbitration matters; and has a high-quality, independent judicial system and a high-quality bar.
Mexico City
Authors: Wobeser Claus von
Published: June 2017

This chapter evaluates the merits of Mexico as a venue for international arbitration proceedings. It discusses the history and development of arbitration in Mexico; the processes and rules involved as well as the role of courts in the conduct of arbitration proceedings; and rules for arbitral awards. It concludes that Mexico is an attractive venue to conduct arbitration because of its complete and exhaustive legal framework, coupled with the availability of effective judicial assistance. Mexican law is modern and supportive of arbitration. The numerous free trade agreements and bilateral investment treaties (BITs) entered into by Mexico establish international arbitration as the primary means of resolving disputes. The adoption of the United Nations Commission on International Trade Law (UNCITRAL) Model Law and ratification of the New York Convention had also made the judicial approach towards the recognition and enforcement of arbitral awards favorable.
Paris
Authors: Malinvaud Carole , Camboulive Christian
Published: June 2017

This chapter evaluates the merits of Paris as a venue for international arbitration proceedings. It discusses the history and development of arbitration in France; the processes and rules involved as well as the role of courts in the conduct of arbitration proceedings; and rules for arbitral awards. It concludes that the new French arbitration regime, resulting from the January 13, 2011 reform, continues to distinguish French arbitration law from the United Nations Commission on International Trade Law (UNCITRAL) Model Law. This new regime confirms the longstanding supportive approach of France towards arbitration, as an appropriate and adapted mean to resolve international commercial disputes in particular. Yet on certain issues, such as the possibility of waiving the right to challenge awards or the computation of the time limit to introduce such challenges, the innovative provisions of the new French regime have yet to be tested in the courts.
Awards
Authors: Mangan Mark , Reed Lucy , Choong John
Published: June 2017

This chapter presents an overview of the procedure in the granting of awards during Singapore International Arbitration Centre (SIAC) arbitrations. THe term ‘award’ refers to a decision of the arbitral tribunal on the substance of the dispute such as interim, interlocutory, or partial award. SIAC Rule 28 deals with issues relating to the issuance, content, scrutiny, effect, and the publication of awards. SIAC Rule 29 covers the occasions where it is necessary for tribunals to correct or interpret an award, or issue an additional award. Once issued, the interpretation becomes part of the award and as such, binding and enforceable.
Costs
Authors: Mangan Mark , Reed Lucy , Choong John
Published: June 2017

This chapter compares the costs of resolving a dispute through arbitration and the cost of resolving a dispute through municipal courts. Cost can be a major factor in terms of deciding whether to have their disputes determined by municipal courts or through arbitration. The chapter presents a table that differentiates the Singapore International Arbitration Centre (SIAC) costs of arbitration to its two regional competitors, the International Criminal Court (ICC), and Hong Kong International Arbitration Centre (HKIAC). SIAC tribunal fees are cheaper than ICC tribunal fees. Its tribunal fees are also capped at an amount less than the maximum fees payable to a HKIAC arbitrator.
Ad Hoc Arbitration
Authors: Mangan Mark , Reed Lucy , Choong John
Published: June 2017

This chapter discusses the function of the Singapore International Arbitration Centre (SIAC) in facilitating an ad hoc arbitration. SIAC offers services to the parties and the tribunal when it is asked to exercise its statutory powers as an appointing authority in ad hoc arbitrations. The support of SIAC in administering ad hoc arbitrations can be invited through the request of both parties or through an appointment by the Secretary-General in exercising his powers under the UNCITRAL Arbitration Rules.
Parallel Proceedings
Authors: McLachlan Campbell , Shore Laurence , Weiniger Matthew
Published: June 2017

Chapter 4 deals with a complex set of problems that have arisen in determining the relationship between parallel claims in investment arbitration and other forms of dispute resolution, including proceedings in host State courts. Five issues which arbitral tribunals have had to confront in considering the impact of other forms of dispute resolution upon their jurisdiction are explored in particular: (1) the distinction between breach of contract and breach of treaty; (2) election, waiver, and ‘fork in the road’; (3) prior resort to local remedies; (4) internationalised contract claims and ‘umbrella clauses’; and (5) parallel treaty arbitration. The chapter considers the extent to which the general doctrines of lis pendens, res judicata, election, waiver, and abuse of process are capable of application in investment treaty arbitration.
Expropriation
Authors: McLachlan Campbell , Shore Laurence , Weiniger Matthew
Published: June 2017

Chapter 8 deals with the protection from the expropriation of an investor’s property. It places this important protection against the background of its historical development before considering the particular formulations now commonly found in the key investment treaties. It then examines, case by case, the circumstances in which arbitral tribunals have found State conduct to be expropriatory, analysing the degree of State interference required to constitute expropriation as well as the kinds of governmental measures that may constitute expropriation; the nature of the claimant’s rights that are capable of being expropriated; and the importance of the distinction between direct and indirect expropriation.
Compensation
Authors: McLachlan Campbell , Shore Laurence , Weiniger Matthew
Published: June 2017

Chapter 9 examines the obligation upon the State committing the international wrong to make reparation through restitution or monetary compensation. It first considers the international law standards of compensation for expropriation before proceeding to discuss the range of options adopted in practice by arbitral tribunals. It then looks at practical application of the main methods of valuation used to determine the appropriate level of compensation, particularly the ‘discounted cash flow’ method, along with the issue of causation in international law. The chapter concludes with an analysis of five topics that are assuming greater practical importance in the approach of arbitral tribunals to remedies: the award of moral damages in exceptional circumstances; the claimant’s duties of mitigation of loss; the potential for the availability of non-pecuniary remedies; interest; and costs.
Interim Relief
Authors: Wolff Reinmar
Published: June 2017

This chapter discusses the interim relief measures issued during arbitration proceedings. Interim measures represent one of the most difficult areas in arbitration as it is characterized by the tribunal’s broad discretion and the need for a grant of enforcement by the state court. In a dispute, whether a party finally achieves its requested legal protection will depend on interim measures of protection: the disclosure of a trade secret, for example, cannot be undone even if an award or judgment later finds that the trade secret was illegal. While state court interim measures per se follow the general rules of civil procedural law at the place of their issuance, they pose a number of challenges at the interface between these general local civil procedure rules and the particularities of arbitration, particularly in cross-border disputes.
International Arbitration: Law and Practice in Switzerland
Authors: Kaufmann-Kohler Gabrielle , Rigozzi Antonio
Published: June 2017

This book expounds the theory of international arbitration law. It explains in easily accessible terms all the fundamental concepts of arbitration, from separability of the arbitration agreement to competence-competence over procedural autonomy, finality of the award, and many others. It does so with a focus on Swiss international arbitration law and jurisprudence, which are among the leading ones globally. Yet, its reach is broader than a commentary of Chapter 12 of the Swiss Private International Law Act as the foundations of international arbitration are common to most arbitration systems nowadays; the discussion contains numerous references to comparative law and developments. In addition to presenting the law extensively, the book discusses the practice of international tribunals. Written by two well-known specialists – Prof. Kaufmann-Kohler being one of the leading arbitrators worldwide and Prof. Rigozzi one of the foremost experts in sports arbitration – the work reflects many years of experience in managing arbitral proceedings involving commercial, investment and sports disputes. That knowhow is the basis for the solutions proposed to resolve the many practical issues that may arise in the course of an arbitration. It also informs the discussion of the arbitration rules addressed in the book, from the ICC Arbitration Rules to the Swiss Rules of International Arbitration, the CAS Code, and the UNCITRAL Rules. While the book covers commercial and sports arbitrations primarily, it also applies to investment arbitrations conducted under rules other than the ICSID framework.