bluuebunny/crossref_metadata_2025 huggingface dataset:
Confidentially Speaking: Commercial Arbitration in Canadas Open Courts
Authors: Pengelley Nicholas
Published: March 2022

Confidentiality is a vexed topic in international commercial arbitration. Regarded as arising inherently from the private nature of arbitration (with few exceptions) by U.K. courts, other jurisdictions have hedged it with qualifications. Canada, with its strong adherence to the principles of open courts, and freedom of speech, is at the extreme edge of the spectrum. Although its courts have found no inherent right to confidentiality, "sealing orders" will be granted in certain circumstances to preserve confidentiality of materials gathered in the course of preparing for an arbitration.
Shifting the Burden of Proof in the Practice of the IranUnited States Claims Tribunal
Authors: Marossi Ali Z.
Published: March 2022

When an adjudication body is called upon to resolve a dispute, its function is to weigh the adduced evidence and decide whether a claim has been made out on that evidence or not. The adjudication body will come to a conclusion from the evidence that has been presented, and in some cases from evidence which has not been presented, but which would have been expected to be forthcoming. International tribunals, such as the Iran-United States Claims Tribunal (IUSCT), may also draw adverse inferences from the silence of a party in circumstances where such silence is inconsistent with the position taken by that party in the arbitration. This article briefly discusses issues such as the burden of proof, who must shoulder the burden of proof, and an alternative allocation for burden of proof in the practice of the international adjudication bodies (mainly the Tribunal itself ).
The Expanded Role of the Appointing Authority under the UNCITRAL Arbitration Rules 2010
Authors: Grimmer Sarah
Published: March 2022

The role of the appointing authority has expanded under the 2010 United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules. In addition to its traditional powers under the 1976 version of the Rules, the appointing authority may now be requested, under certain circumstances, inter alia, to constitute the arbitral tribunal (and in doing so, revoke any appointment already made and appoint or reappoint each of the arbitrators); determine whether a party may be deprived of its right to appoint a substitute arbitrator and authorize a truncated tribunal to proceed and issue an award; and revise-with binding effect-a tribunal's decision on its fees. This article examines each of the new roles assigned to the appointing authority under the 2010 Rules, and includes comment on the motivation for the additions as expressed during the revision process. It also sets forth factors that appointing authorities will need to take into account when requested to act under one of the new roles.
International Investment Protection Regime and Criminal Investigations
Authors: Mirzayev Ruslan
Published: March 2022

Over the past few years there have been many allegations that states abuse their police powers to escape their international obligations before foreign investors. In particular, it has been alleged that states initiate criminal proceedings in order to escape payment of compensation for expropriation, hamper arbitral hearings or punish foreign investors. This article attempts to find a solution to the problem of the abuse of police powers. Such a study is important, because the abuse of police powers can damage the whole international framework for protecting foreign investments.

The findings from this article provide evidence that there are many principles of international law that international arbitral tribunals have applied when dealing with criminal proceedings initiated by host states against foreign investors. This article draws a conclusion that the principles of international law can substantially prevent the abuse of police powers by states when dealing with foreign investors.

This article recommends that arbitral tribunals need to determine the intent of states initiating criminal proceedings against foreign investors. After arbitral tribunals determine that the states initiated criminal proceedings in good faith, they should balance the legitimate interests of the international investment protection regime and the arbitral proceedings against the rights of the host states to investigate crimes within their territories.
Inherent Power of the Arbitral Tribunal to Investigate Its Own Jurisdiction
Authors: Wha Chang Seung
Published: March 2022

Under most leading arbitral institutions' rules and national laws, the arbitral tribunal has the power to raise, investigate and decide on jurisdictional matters sua sponte. This power can be properly exercised, particularly in cases involving issues of arbitrability or public policy and in respondent-default proceedings. When exercising this power, the arbitral tribunal must treat both parties equally and avoid violations of their procedural rights throughout the process of investigating jurisdictional matters.
Follow-Up Note to The Arbitrator as Mediator, and Mediator as Arbitrator (2011), J. Int.Arb. 6, 541 et seq.
Authors: Mason Paul Eric
Published: March 2022

Our original JOIA article describes and analyses the intersection and interplay of mediator and arbitrator roles. It includes a section outlining permissible boundaries in certain cases. One of these cases comes from the courts of Hong Kong which had previously vacated an arbitral award based on out-of-bounds behaviour by the neutrals involved. This decision was recently revisited and overturned on appeal, as described in this Follow-Up Note.
Year 2012: Harbinger of Change for Indian Arbitration?
Authors: Ray Ashutosh
Published: March 2022

The year 2012 has begun on a high note with the Indian judiciary saddled up to look thoroughly into the major problems surrounding international arbitration in India. The current work traces some very important judgments which have led the Supreme Court to establish a Constitutional bench early this year. The current work also discusses the probable outcome and other concerns that are likely to be addressed by this Constitutional bench. These concerns remain of utmost importance to the global arbitration community involved in dispute resolution.
The Meaning of Investment as a Requirement for Jurisdiction Ratione Materiae of the ICSID Centre
Authors: Timmer Laurens J.E.
Published: March 2022

It follows from Article 25 of the ICSID Convention that the ICSID Centre has jurisdiction only if the dispute arises from an 'investment'. Despite the importance of this term, there is a fundamental lack of consensus on its meaning. Although the general view appears to be that the term 'investment' under Article 25 of the ICSID Convention has some objective meaning that is not at the disposition of the parties, not every tribunal has explicitly accepted the existence of these outer limits to the Centre's jurisdiction. The tribunals that do accept these outer limits are divided on the relevant characteristics that can be used to identify the term 'investment' and the nature and meaning of these characteristics. A divide has been recognized by tribunals and legal commentators between the 'jurisdictional' and a 'typical characteristics' approaches when considering abstract criteria relevant for 'defining' or 'identifying' the existence of an investment under Article 25 of the Convention. After considering recent case law, this article proposes that a hybrid between these two approaches can be identified. On the one hand, the concept of using abstract criteria as mandatory requirements to test the existence of an investment is consistently rejected. On the other hand, exception has been made by several tribunals which have required that the claimed investment should at a minimum be suitable to contribute to the economic development of the host State. The author of this article considers this to be a reasonable approach and in line with the purpose of the ICSID Convention.
Harmonization of Custom, General Principles of Law, and Islamic Law in Oil Concessions
Authors: Ayad Mary B.
Published: March 2022

What is proposed herein is that common legal principles found in civil, common and Islamic law, which form part or all of the legal systems in the Middle East and North Africa (MENA), can be distilled to create a new harmonized International Commercial Arbitration Law Code (HICALC) for adoption in the MENA. This Code also addresses many of the doctrinal issues that arise in international investment arbitrations. To this end, the author proposes that custom, as expressed in the lex mercatoria, as well as other general principles of law, can be harmonized with Islamic law principles .The majority of the MENA Law Codes are a well-crafted blend of civil and Islamic law in which civil law principles simply do not contradict any Islamic provisions. This was plainly Sanhuri's genius, as these Codes were originally based on Sanhuri's Codes to varying degrees. However, common law principles derived either from English common law or Islamic customary usages are largely unidentified and as a result are ignored. The research herein seeks to redress this lacuna and fill the gap, based upon a comparative law method of the analysis of primary data such as cases, statutes and arbitral award decisions. Adding the element of comparing and harmonizing custom and general principles of law with Islamic law is a new approach. This research is highly practical, representing a synthesis of theory and practice. The importance of this work in light of the revolutionary changes affecting the MENA make this research immensely topical.
Offset of Benefits in Damages Calculation in International Investment Arbitration
Authors: Tietje Christian , Sipiorski Emily
Published: March 2022

It is recognized in public international law that the very notion and rationale of full compensation implies that double recovery has to be avoided. Offset of benefits is also determined by considerations of equity which are inherently part of any damage calculation. In addition, offset of benefits is also recognized in international conventions and instruments on international commercial law. International tribunals have, however, for a long time recognized that the law does not require offsetting the benefit in all cases where a benefit is received. Already early jurisprudence points to causality as the decisive factor concerning the offset of benefits. Thus, any offsetting of benefits depends on causality in terms of an adequate and close connection between damage and benefit. Moreover, tribunals have rejected attempts to apply profits made by a non-regulated sector of the business to offset the damages awards. Thus, in case the benefits which occur and the damage experienced are located in two separate entities, an offset of benefits may not be considered. A comparative law perspective affirms that offset of benefits is a recognized principle of law of damages but that it is subject to certain prerequisites which are essentially based on considerations of causality and equity.
Investment Arbitration without BIT: Toward a Foreign Investment Customary Based Arbitration?
Authors: Forteau Mathias , Audit Mathias
Published: March 2022

Arbitration without privity is traditionally viewed as based on bilateral investment treaties (BITs), or less often on multilateral treaties or national laws. But the mechanism is becoming so common that there is room for assessing whether arbitration offers by host stats toward foreign investors have become an international customary rule. The aim of this paper is to assess the eventuality of such a radical view of the arbitration offer.
RecentTrends in the Conduct of Arbitrations
Authors: Feldman Laura , Brock Denis
Published: March 2022

In recent years, marked and novel changes have been made to the procedural rules and practice of tribunals conducting arbitrations to resolve commercial disputes. This article explores the most important trends, and provides practical advice upon how recent developments can offer effective solutions when conducting an arbitration. Five key changes are explored: first, the globalization of the rules to conduct arbitrations; second, the evolution towards court support of the conduct of arbitrations; in a similar vein, third, the introduction of rules allowing courts to award extra-territorial relief in support of foreign arbitrations; fourth, the introduction of measures to curb the increasing costs of arbitrations; finally, the unfortunate increase in the abuse of the rules to conduct arbitrations to manipulate the arbitral process. It is hoped that the material discussed, and the guidance given, will assist practitioners and commercial parties conduct arbitrations cost-effectively and efficiently, with an awareness of the importance of ensuring justice between the parties.
Nullity and Jurisdictional Excess as Grounds for Non-Enforcement of Foreign Awards in Bahrain and the UAE
Authors: Bantekas Ilias , Al-Nasair Mohamed
Published: March 2022

Both the UAE and Bahrain should be considered liberal and flexible in their enforcement of foreign arbitral awards. The imposition of obstacles to foreign awards on the basis of jurisdictional excess may be remedied if the ultra vires part of the award can be severed from the rest. An award will only exceptionally be considered null and in any event the question of nullity is dependent on the agreed terms of the contract. Unlawful contracts (particularly gharar) and the assumption of authority by the tribunal that was not granted by the express will of the parties will render an award null.
Why Good Arbitration Cannot Compensate for Bad Courts
Authors: Paulsson Jan
Published: March 2022

The following article is a print version of a lecture delivered by Professor Jan Paulsson in Hong Kong in April 2013. In this lecture, Professor Paulsson observes that it may seem paradoxical that the legal systems that have the best courts are the most likely to defer to arbitration, while those whose courts are riddled with incompetence and arbitrariness tend to insist on imposing them on the populace. Still, it would be a mistake to think that arbitration could ever function for long as an enclave of superiority. The ideal of complementarity is attained through constant, tireless and respectful dialogue.
Game of Thrones: A Narrowing Immunity?
Authors: Lewis James D.A. , Brown Nicholas A.
Published: March 2022

When international commercial arbitration is used between private parties and sovereign-related entities, the doctrine of sovereign immunity provides an additional barrier to enforcing any resulting arbitral award. This article focuses on three recent decisions (from the Swedish Supreme Court, the Singapore Court of Appeal and the Privy Council of the United Kingdom) regarding the enforcement of arbitral awards against, respectively, Russia, the Maldives and a state-owned entity of the Democratic Republic of the Congo. These cases demonstrate a shift towards the restrictive approach to sovereign immunity and, consequentially, the rising utility of international commercial arbitration.
Who Decides Arbitrability Where a Precondition to Arbitration Has Not Been Satisfied?: A Comment on the U.S. Supreme Courts Decision to Hear the Appeal in BG Group v. Argentina
Authors: Xheraj Blerina , Ebere Solomon
Published: March 2022

In BG Group v. Argentina, the U.S. Supreme Court, for the first time in its history, has decided to hear a case involving a bilateral investment treaty. The threshold question before the Supreme Court is whether courts, rather than arbitrators, should decide arbitrability where a precondition to arbitration has not been satisfied. Both the U.S. arbitration community and the U.S. Solicitor General have weighed in on this question, submitting opposite amicus curiae briefs. While the former urged the U.S. Supreme Court to reverse the challenged court decision, the latter opposed the petition. The debate and the underlying issues this case raises are not unique to the United States. Courts in Europe and investment tribunals have also had the opportunity to address similar questions and have adopted a variety of approaches, calling to mind the positions advocated by the different stakeholders before the U.S. Supreme Court.
U.S. Discovery in Aid of International Arbitration: Where Things Presently Stand
Authors: Eaton Luke N. , O’Malley Nathan D.
Published: March 2022

United States Code Title 28 section 1782 is a mechanism by which federal courts within the United States may provide assistance to foreign and international tribunals and to the litigants in discovering and obtaining evidence. The nature and scope of this assistance is subject to conflicting interpretations, specifically with regard to the meaning of the term "foreign or international tribunal." In this regard, the case law in the United States concerning this statute continues to develop. This commentary summarizes the history and developments of section 1782 and considers the present state of the law.
The Hungarian Arbitration Law: A Leap into the Past
Authors: Cavalieros Philippe
Published: March 2022

Hungary has recently adopted two laws that significantly restrict party autonomy and freedom to resort to arbitration, thereby casting doubts on the foreign investors' alternatives in seeking redress other than through state court litigation.
Dealing with Corruption Allegations in International Investment Arbitration: Reaching a Procedural Consensus?
Authors: Bonini Anna , Kendra Thomas
Published: March 2022

Corruption allegations have, perhaps unfortunately, become a common issue in investment arbitration and tribunals are taking an increasingly active role in dealing with them. While the legal status and the standards of proof applicable to such corruption allegations have been widely discussed, it has not been clearly established as to what tribunals will do on a practical and procedural level. This article examines how tribunals deal with this aspect of corruption allegations, particularly in light of two recent cases, Niko Resources v. Bangladesh and Metal-Tech v. Uzbekistan, assessing whether the current body of precedents is sufficient to provide a party or a tribunal with procedural predictability and provide certainty on their position in respect of corruption, including in relation to potential parallel domestic court proceedings. While there are examples of tribunals applying various different practices, there does appear to be a developing trend that suggests that tribunals are increasingly willing to be involved in the procedure and decision-making processes surrounding such allegations.
Is There a Default Principle of Cost Allocation in International Arbitration?
Authors: Koch Christopher
Published: March 2022

This study looks at the interaction between cost allocation systems as they have developed in national civil procedure and the cost allocation principles found in the arbitration rules of those jurisdictions. I define two basic approaches to cost allocation: one, known as the 'American rule', which is outcome neutral and the other, which is the allocation of costs based on the outcome of the case. Within the latter 'outcome based' allocation, I identify three methods. After looking at the policy considerations which drive these four approaches, the study analyses the cost decisions of fifty-three awards, with a view to identifying any empirical evidence of a default principle of last allocation in international arbitration.
Vive la difference? Convergence and Conformity in the Rules Reforms of Arbitral Institutions: The Case of the LCIA Rules 2014
Authors: Zaman Rebecca , Sabharwal Dipen
Published: March 2022

Many international arbitration institutions have reformed their Rules within the last five years, including the International Centre for Dispute Resolution (ICDR (2009)), Stockholm Chamber of Commerce (SCC (2010)), International Chamber of Commerce (ICC (2012)), Singapore International Arbitration Centre (SIAC (2013)), Hong Kong International Arbitration Centre (HKIAC (2013)) and now the London Court of International Arbitration (LCIA (2014)).The LCIA's reform of its Rules appears to be part of an increasing convergence of the procedures of international arbitration institutions. This is particularly apparent in three aspects of the new LCIA Rules: the new availability of emergency arbitrators; the inclusion of consolidation provisions and rules on the treatment of third parties generally; and the imposition of 'soft' ethical standards on arbitrators, experts and legal representatives. This article examines this phenomenon of convergence among arbitration institutions, and assesses its desirability. Are these second generation reforms to institutional rules similar because they are addressing common user concerns and general teething problems with earlier rules? Or are other influences pushing arbitral institutions towards conformity in their procedures? This article analyses empirical data concerning the extent to which choice and flexibility in procedures are desired by users of arbitration. In light of this data, we consider the extent to which the LCIA rule reforms and other institutional rule reforms are catering to user preference and how this might be improved.
The Recognition and Enforcement of the Foreign Arbitral Awards with No Foreign Element in China
Authors: Zhu Weidong
Published: March 2022

It is a hot topic in China in recent years among arbitration scholars and practitioners whether Chinese parties may submit their disputes with no foreign element to a foreign arbitral institution. The ruling made by the No. 2 Intermediate People's Court of Beijing on 20 January 2014 refusing the recognition and enforcement of an arbitration award made by the Korean Commercial Arbitration Board raised public concern over the issue again. This is the first arbitration award made by the Korean Commercial Arbitration Board denied recognition and enforcement in China and also the first foreign arbitration award denied recognition and enforcement in China on the basis of the fact that the Chinese parties submitted their dispute with no foreign element to a foreign arbitral institution, which will have significant implications for arbitration development in China.
Inherent Jurisdiction and Implied Power to Stay Proceedings in Aid of Arbitration: A Nice Question
Authors: Devendra Isuru
Published: March 2022

In recent years Australia has seen an exponential growth in the use of arbitration. This has necessitated greater involvement by courts in facilitating arbitral proceedings. In this context, one of the issues most frequently encountered by the courts is whether to stay court proceedings in aid of arbitration. This article considers the basis of a court’s power to grant such an order. In doing so, the article explores both the statutory and the inherent jurisdiction of a court, including recent jurisprudence that highlights the uncertainty in the field. The article suggests interpreting domestic arbitration legislation in a manner that is consistent with Australia’s pro-arbitration policy and advocates reconsideration of early High Court authority as to the inherent powers of courts in this area.
Pro-enforcement Bias by Hong Kong Courts: The Use of Indemnity Costs
Authors: Kwok David
Published: March 2022

This article discusses the approach taken by Hong Kong courts to award indemnity costs against applicants who were unsuccessful in resisting enforcement of New York Convention awards. Under general principles, an indemnity costs order is penal in nature and is usually awarded in exceptional circumstances. In the case of A v. R, the High Court of Hong Kong held that the unsuccessful application to resist enforcement of an award warranted the indemnity costs order. This approach was justified on the basis of Hong Kong’s Civil Justice Reform (CJR) and its implications, and was given endorsement by Hong Kong’s Court of Appeal in a subsequent decision. Meanwhile, the Court of Appeal of the Supreme Court of Victoria, Australia, had considered, but rejected, the Hong Kong approach of awarding indemnity costs. This article questions whether applications in respect of Convention awards belong to a special class, compared to other civil applications to court, so that an indemnity costs order against the unsuccessful applicant should be the norm. It is argued that whilst the awarding of indemnity costs in such circumstances is controversial, it can nonetheless be justified based on the court’s ‘pro-enforcement’ bias in relation to Convention awards.
The Future of Intra-European Union BITs: A Recent Development in International Investment Treaty Arbitration against Romania and Its Potential Collateral Damage
Authors: Wilske Stephan , Edworthy Chloë
Published: March 2022

The article explores the debate surrounding intra-European Union (EU) investment treaty arbitration and the intervention of the European Commission in an investment treaty arbitration against Romania. The European Commission has demonstrated great appetite to pursue its own agenda in multiple proceedings generating an outcome which, it is argued, is likely to lead to an uncertain future for foreign direct investment in Romania and several other Member States. The article warns that if the Commission is not prepared to countenance that international law obligations can prevail over EU law (at least in so far as it is interpreted by the Commission) a dangerous precedent may be set and there could be adverse consequences for the rule of law.
Space  The Final Frontier: Analysing Challenges of Dispute Resolution Relating to Outer Space
Authors: Kurlekar Arthad
Published: March 2022

The development of outer space law at an international level has arguably stagnated after the Moon Agreement in 1979. With the rise in private space activities from the end of the twentieth century, a robust framework for dispute resolution has become an increasingly vital necessity in the space law regime. Scholars have theorized several schemes for settlement of disputes such as consultative alternative dispute resolution, a tribunal for the settlement of space law disputes, a multi-door courthouse and so on, but very few concepts have transformed into operable mechanisms. In space law at the international level, diplomatic consultation, claims commission under the Liability Convention, the International Court of Justice and, in support of arbitration, the rules of the Permanent Court of Arbitration for the Settlement of Disputes relating to Outer Space 2012 remain the only existing viable mechanisms. The article evaluates all these forums for dispute settlement to demonstrate their inadequacies. Thereafter, having identified its long-term limitations, the article seeks to justify a multi-tiered arbitration clause as an effective means of settlement of disputes relating to outer space.
Most-Favoured-Nation Treatment: Survival Clauses and Reform of International Investment Law
Authors: Titi Catharine
Published: March 2022

In the last decade, international investment law has been on a trajectory of rapid evolution with reform high on agenda priorities. Reform requires a reconciliation of competing interests, which is generally so difficult to achieve that it is often unclear whether an option constitutes ‘reform’ or unwanted change. Two specific treaty provisions, the most-favoured-nation (MFN) treatment and survival clauses, can interfere with the reform process and become an impediment to changing the rules of the game. This is particularly true when political will is present. The MFN treatment, a guarantee of non-discrimination present in the quasi-totality of investment treaties, can have far-reaching ramifications for newly negotiated provisions, especially where international investment agreements confer pre-establishment rights and a clause expressly covers ‘all matters’ within a treaty. Survival clauses, a type of provision that extends the validity of an investment agreement beyond its termination, can delay the onset of the new options for an average of between five and twenty years after expiry of the treaty’s minimum period of application. This article explores these two types of clauses and discusses their potential impact on the reform of international investment law.
Applying the UNIDROIT Principles in International Arbitration: An Exercise in Conflicts
Authors: Benedettelli Massimo V.
Published: March 2022

The International Institute for the Unification of Private Law, which recently celebrated its 90th anniversary, published in 1994 the Principles of International Commercial Contracts. Since then the UNIDROIT Principles have been more and more often referred to by arbitral tribunals when settling contractual disputes. As a non-binding instrument of soft law, however, the UNIDROIT Principles may play a very different function depending on whether they are used as ‘rules of law’ for the regulation of a contractual relationship, are incorporated as terms of a contract governed by a state contract law, or are means to interpret and supplement the applicable contract law or the 1980 United Nations Convention on Contracts for the International Sale of Goods. Moreover, they can be applied pursuant to an express or implied choice made by the parties, either in the contract or after the dispute has arisen, or when the arbitral tribunal so decides by its own motion. In all such different scenarios different problems may arise for the coordination of the UNIDROIT Principles with sources of state law that have title to regulate the contractual relationship in dispute. Understanding such problems and finding a solution to them is essential in order to avoid the risk that the award may be later challenged or refused recognition. Such understanding could also foster the legitimacy of requests made by a party, or decisions taken by the arbitral tribunal, to apply the UNIDROIT Principles. It is submitted that private international law, taken as a technique for the coordination of legal systems, may offer a useful know-how to parties, counsel, arbitrators and courts for mastering such problems in a reasoned and sound way. This may result in enhancing the effectiveness of the UNIDROIT Principles, while balancing party autonomy with the sovereign interest of states in regulating international business.
Adjudicator, Advocate, or Something in Between? Coming to Terms with the Role of the Party-Appointed Arbitrator
Authors: Menon Sundaresh
Published: March 2022

The disturbing revelations arising out of the Croatia-Slovenia arbitration have underscored the importance of having a clear understanding of the role of the party-appointed arbitrator. The problem can be traced at least in part to the tension between the arbitrator’s personal incentives and professional obligations. On the one hand, the party-appointed arbitrator owes his appointment to the favour of his appointer. How the appointer assesses his performance will likely have a bearing on the appointee’s prospects of future appointments. But any such assessment will be from the subjective perspective of the appointer and will almost inevitably be tied to the outcome of the matter. This can create an economic incentive for the appointee to be sympathetic to the appointer’s case. On the other hand, most members of the arbitration community still hold to the view that there subsists a professional obligation of impartiality which inheres in the office of arbitrator and which is not to be diminished at all in the case of a party-appointed arbitrator. This requires not only that he act fairly, but also that he be seen to be doing so. This article examines the functions, duties and obligations of the party-appointed arbitrator from preappointment consultations to the final discharge of the mandate, and suggests some practical rules of engagement and best practices that emerge from the analysis. It also proposes a systematic approach to arbitrator regulation in the establishment of a central body to oversee the discipline of international arbitrators.
The KLRCA I-Arbitration Rules: A Sharia-Compliant Solution to the Problems with Islamic Finance Dispute Resolution in Singapore and Malaysia?
Authors: Schwing Mel Andrew
Published: March 2022

In 2012, the Kuala Lumpur Regional Centre for Arbitration launched its i-Arbitration Rules in an attempt to attract more disputes from the multitrillion-dollar Islamic finance industry. The i-Arbitration Rules attempt to provide a Shari’a-compliant protocol for international commercial arbitration of those disputes. This article analyses whether they meet that objective by first exploring why there is a need for an alternative method of dispute resolution in Asia for Islamic finance disputes, then looking at the issues that arise when Shari’a matters are subject to international commercial arbitration, and finally considering whether the i-Arbitration Rules resolve those issues.
Why Finland Should Adopt the UNCITRAL Model Law on International Commercial Arbitration
Authors: Seppälä Christopher R.
Published: March 2022

This article describes why a small country like Finland, which has excellent natural attributes as a place for arbitration (political neutrality and stability, respect for the rule of law, freedom from corruption and a central location between East and West), but which is little resorted to for this purpose, being overshadowed by its neighbour, Sweden, should adopt the United Nations Commission on International Trade Law (‘UNCITRAL’) Model Law on International Commercial Arbitration (the ‘Model Law’). The indispensable condition for any country to develop as a place for arbitration is for it to have a modern and internationally acceptable arbitration law. However, Finland’s arbitration law is relatively old (dating from 1992) and based on an antiquated Swedish model. What is more serious is that Finland’s legal infrastructure for arbitration, that is, its arbitration law and court system, is not perceived by international arbitration users and arbitral institutions as being internationally acceptable. By contrast, the Model Law is recognized today as the ‘baseline for any state wishing to modernize its law of arbitration’ Accordingly, if Finland wants to become an attractive place for international arbitration, as it should do, the obvious solution is for it to adopt the Model Law. This will make Finland instantly recognizable around the world as having a modern and internationally acceptable arbitration law.
Equity-Based Discretion and the Anatomy of Damages Assessment in Investment Treaty Law
Authors: Elrifai Silke Noa
Published: March 2022

This article looks at the manifestation of equity-based arbitrator discretion as a tool to balance treaty-based investor rights with extrinsic public law obligations of states. The article breaks down the process of damages assessment into four separate decision stages and analyses at each stage (1) a dataset of previous International Centre for the Settlement of Investment Disputes (ICSID) awards; (2) the answers to a survey of arbitrators, jurists and practitioners; as well as (3) scholarly opinion.

The article argues that equity-based discretion happens at each stage of the conceptualized decision-making chain and contributes to the incoherence of damages awards. The author argues that although arbitrators’ resort to discretion must remain unfettered, it is preferable for vague concepts such as equity to be kept to a minimum to protect the continued legitimacy of the investment treaty system. Instead, it is the language of investment treaties that needs to be adapted in the long-term, thus keeping pace with developing international investment law standards.
Eli Lilly v. Canada: A Patently Clear-Cut Dismissal on the Facts, but Opening the Door for Future Claimants on the Law
Authors: Leikin Eric , Kasolowsky Boris
Published: March 2022

In March 2017, the Tribunal in Eli Lilly v. Canada issued a unanimous final Award, dismissing all claims on the basis that the claimant ‘failed to establish the factual premise of its case’. Despite finding against Eli Lilly on the facts, the Lilly decision appears to have opened the door (at least slightly) for investors on two novel points of law. First, the Tribunal suggested that a judicial decision which does not constitute a denial of justice may nonetheless qualify as a breach of the North American Free Trade Agreement's (NAFTA's) minimum standard of treatment (Article 1105) and/or protection against expropriation (Article 1110). Second, the Tribunal did not reject – and indeed appeared willing to consider – the proposition that an investor may support its investment arbitration claims by relying on a host state’s international commitments on the treatment of intellectual property rights. Given the potential importance of these issues in future arbitrations, this article first provides an overview of the Lilly decision. It then explores in greater depth the two legal issues raised above, examining the arguments put forward by the parties, the view expressed by the Tribunal and the potential effect on the development of international investment law, with a particular focus on how these issues may come into play in any future claims arising from the issuance of a compulsory license.
International Arbitration and EU Competition Law Complement Rather than Contradict One Another
Authors: Seow Amy , Ilie Lucian
Published: March 2022

The relationship between international arbitration and EU competition law is of practical importance because of the increasing number of cases in which arbitrators are called on to apply competition rules. This article addresses both the theoretical and practical aspects of arbitrating competition law disputes, to give an overall picture of the relationship between international arbitration and competition law.

This article shows that the two are not in conflict. Rather, they complement each other, and arbitration can be a method of resolving competition law disputes. This article considers the arbitrability of competition law disputes (section 2); the powers and duties of arbitrators in applying competition law (section 3); the relationship between arbitrators and public enforcers of competition law (section 4); and the scrutiny of awards in which competition law issues are implicated, under both the New York Convention and the International Centre for Settlement of Investment Disputes (ICSID) Convention (section 5).
Arbitration Changes in Russia: Revolution or Evolution?
Authors: Kropotov Leonid , Skvortsov Oleg
Published: March 2022

This article is devoted to the analysis of commercial arbitration reform in Russia. The authors explore the reasons for the reform. The effect of the reform is a switch from extremely liberal regulatory pattern of arbitration to moderately conservative pattern. Pros and cons of the reform as well as relevant court practice are reviewed. Forecasts are made on further development of commercial arbitration in Russia.
Emergency Arbitrators Versus the Courts: From Concurrent Jurisdiction to Practical Considerations
Authors: Cavalieros Philippe
Published: March 2022

The 10 November 2017 Dublin International Arbitration Day, organized by Arbitration Ireland, had an entire session devoted to the topic ‘Interim Measures: Emergency Arbitrators Versus the Courts.’ Drawing in part from the various issues discussed at the session, in which Philippe Cavalieros, as one of the first appointed International Chamber of Commerce (ICC) Emergency Arbitrators, participated, this article focuses more specifically on the issue of concurrent jurisdiction to grant emergency relief.
The Medium Is the Message: Establishing a System of Business and Human Rights Through Contract Law and Arbitration
Authors: Blair Cherie , Vidak-Gojkovic Ema
Published: March 2022

This article seeks to paint a picture of an emerging system of business and human rights (BHR) law by following certain developmental trends across normative, substantive and procedural realms. These trends show that there is acknowledgment for the concept of corporate responsibility for BHR, and that the lines between ‘soft’ and ‘hard’ law are becoming blurred. Through contractual and arbitral mechanisms, a binding system of law is taking shape.

 At the forefront of recent trends, international arbitration is increasingly becoming a procedural venue of choice for BHR disputes. Furthermore, arbitration promises to offer an environment that will both kindle the evolution of substantive rights and permit their enforcement and effective redress. The medium, indeed, is the message.
Model Green Investment Treaty: International Investment and Climate Change
Authors: Rosemberg Anabella , Magraw Daniel , Chennoufi Leila , Cowling Krycia , Leva Charles Di , Drimmer Jonathan , Giorgetti Chiara , Lee Young Hee , Low Jan , Magraw Kendra , Mccaffrey Steve , Figueroa Grace Menck , Puig Sergio
Published: March 2022

Mitigating and adapting to the extraordinary threats posed by climate change will require dynamic responses across all elements of human society. Governments face urgent, unprecedented challenges in this regard, including with respect to regulating foreign investment. The international investment regime was not designed to take account of this reality, however, either substantively or with respect to the settlement of disputes. This article proposes a new approach to foreign investment regulation designed to rectify this systemic failure, in the form of an innovative bilateral investment treaty drafted by a multidisciplinary team of internationally renowned experts. The approach proposes a balanced, reciprocal set of obligations for both investors and host states consistent with the Paris Agreement. To incentivize transformation, moreover, the article argues for investment treaties that demand good governance by investors, establish sufficient policy space for host states (via a sectoral approach that specifically addresses areas such as climate change, water, agriculture, human rights, indigenous peoples and public health), and adopt a flexible, fair, accountable and transparent approach to dispute settlement, including enhanced standards for arbitrators and a Code of Ethics—among other innovations.
SIAC Proposal on Cross-Institution Consolidation Protocol: Can It Be Transplanted into Investment Arbitration?
Authors: Prokicì Dina D.
Published: March 2022

Investment arbitration has been increasingly criticized as being, among other things, slow, cumbersome and unpredictable, in light of contradictory awards arising from similar factual situations. Recent renewable energy proceedings against Spain, Italy and the Czech Republic have prompted the author to revisit the idea of creating a consolidation facility in order to address some of these short-comings. Unlike earlier attempts, however, which focused on the possibility of consolidating disputes that are conducted under one set of procedural rules, the author, inspired by the recent Singapore International Arbitration Centre (SIAC) Proposal on Cross-Institution Consolidation Protocol, explores the possibility of consolidating disputes that are conducted under different rules. After analysing SIAC’s Proposal, the author assesses the need for a similar instrument in the realm of investment arbitration. The article subsequently discusses existing consolidation mechanisms of NAFTA, certain BITs and newer trade agreements (CETA, TTIP and the EU-Singapore Investment Protection Agreement). The author then considers different aspects of this new consolidation facility. The article concludes with a brief overview of potential hurdles that this consolidation facility might face on route to acceptance.
Domestic Courts and Investment Treaty Tribunals: The Effect of Local Recourse Against Administrative Measures on the Breach of Investment Protection Standards
Authors: Wehland Hanno
Published: March 2022

Investment treaty tribunals have repeatedly held that an investor’s failure to use available local remedies against administrative measures may reduce its chances of being successful in claiming that investment protection standards have been breached. At the same time, where an investor seeks local recourse against an administrative measure in the host State’s domestic courts and the measure is confirmed, a number of tribunals have taken the view that this confirmation can limit the review in a later investment treaty arbitration. The combined effect of these findings is that local remedies risk becoming simultaneously a requirement for and an impediment to successfully bringing claims under an investment treaty. This situation makes it difficult for investors to decide whether or not to pursue them. This article seeks to solve this conundrum by reassessing the relationship between investment treaty tribunals and domestic courts. It shows that the confirmation of an administrative measure by the courts of a host State can neither preclude a treaty tribunal from considering whether that measure breaches an investment treaty nor undo a treaty breach that already exists. It further suggests that proceedings in the domestic courts can breach an investment treaty even without amounting to a denial of justice. Finally, it argues that the decisions of the domestic courts of a host State should never have any binding effect for a treaty tribunal. By proposing clear rules in an area that has lent itself to a considerable amount of confusion in the past, the article aims to provide investors with much-needed certainty regarding the effect of local recourse.
Challenges in the Taking of Evidence in Arbitrations Seated in Mainland China
Authors: Wei Amy Wen , Molfa Milo , Grant Adam , Kleist Paul
Published: March 2022

Arbitration is often hampered by obstacles to the taking of evidence, either because one party fails to produce relevant documents when requested or the documents are held by a third party outside the tribunal’s powers. Parties engaged in arbitration seated in Mainland China are constrained by the Chinese state court’s limited powers to assist in evidence taking. This article considers the wider scope of options for the taking of evidence in arbitrations seated in Mainland China. The first port of call may be to seek an order from the arbitral tribunal to impose sanctions within the arbitration, such as adverse inferences or adverse cost orders. If the arbitral tribunal cannot compel the recalcitrant party or a third party to produce documents or other evidence, the party may seek assistance from the court at the arbitral seat or a foreign court connected to the arbitration. This article compares the options for state court assistance in evidence taking available in the state courts of Mainland China, England and Wales, Hong Kong, and the United States. Practitioners should be aware that the powers of state courts to assist in evidence taking in international arbitration varies widely between these jurisdictions, from allowing only orders for preservation of key evidence in Mainland China to wide-ranging discovery from third parties by way of Section 1782 applications in the Unitead States.