bluuebunny/crossref_metadata_2025 huggingface dataset:
Prewitt Enterprises, Inc. v Org. of Petroleum Exporting Countries, 353 F.3d 916 (11th Cir. 2003)
Authors: Boon Kristen
Published: June 2017

This case addresses effective service of process of an international organization by a non-member state. The United States Court of Appeals for the Eleventh Circuit relied upon the Federal Rules of Civil Procedure (FRCP) because the Organization of Petroleum Exporting Countries (OPEC) did not fall within the purview of the International Organizations Immunities Act (IOIA) and no other applicable treaty existed regarding the treatment of the OPEC in a United States domestic court. The decision’s reliance upon FRCP and application of foreign law resulted in the inability of the plaintiffs to bring a claim against the OPEC without its express consent.
Western European Union v Siedler, Belgian Court of Cassation, 21 December 2009
Authors: Schmitt Pierre
Published: June 2017

In this decision, the Belgian Court of Cassation adopted a far-reaching interpretation of the Waite and Kennedy jurisprudence of the European Court of Human Rights and its ‘reasonable alternative means’ test to assess if the immunity of an international organization was permissible with regard to the protection of ECHR rights. Not only did the Court of Cassation verify the existence of an internal dispute-settlement mechanism within the WEU—the internal appeals commission—but it also examined its quality with regard to fair trail requirements. Pursuant this check, the Court considered that the commission was not sufficiently independent and consequently rejected the immunity of the organization. Moreover, the Court ruled that, in case of rejection of immunity, the internal law of the organization was to be applied to the dispute, as opposed to domestic law.
OSS Nokalva, Inc. v European Space Agency, United States Third Circuit decision, 617 F.3d 756 (3d Cir. 2010)
Authors: Boon Kristen
Published: June 2017

The United States Court of Appeals for the Third Circuit rejected the long-held assumption that international organizations are entitled to absolute immunity under the domestic International Organizations Immunities Act (‘IOIA’). The legal question raised by this case is: does the language of the IOIA allow for the incorporation of subsequent changes to sovereign state immunity thereby conferring a restrictive, not absolute, immunity upon international organizations? The court applied the same concept of restrictive immunity to international organizations as has been developed and applied to sovereign states. This case has important implications for the evolution of immunities of international organizations over time.
Introduction
Authors: Marboe Irmgard
Published: June 2017

The calculation of compensation and damages plays an important role in international investment arbitration. Claimants are usually interested above all with the question of how much they can expect to receive after a possibly long-lasting legal procedure. In addition, general preventive reasons should also be kept in mind. It follows that the financial assessment of the legal claims should as closely as possible reflect economic realities. This means that generally accepted valuation standards and approaches should be applied which so far has not been self-evident in international legal disputes.
The Function of Compensation and Damages
Authors: Marboe Irmgard
Published: June 2017

This chapter analyses the function of compensation and damages in international investment disputes. It shows that compensation upon expropriation serves a different function than damages after an unlawful act, be it breach of a treaty, such as a BIT, or a contract. While the former aims at the restitution of the ‘value’ of the expropriated property, the latter aims at providing “reparation” for the damage caused by the unlawful act. It follows that expropriation compensation should be equivalent to the ‘objective’ value of the expropriated asset while an amount of damages may also include subjective valuation approaches.
Valuation Standards and Criteria
Authors: Marboe Irmgard
Published: June 2017

This chapter gives an outline of the legal framework of compensation and damages in international investment law. Starting from the standard of compensation upon expropriation under international law it analyses the difference between lawful and unlawful expropriations. It then examines the criteria for valuation in cases of State responsibility and breaches of contract. Furthermore, it addresses the appropriate valuation date as well as the issues of contributory negligence and the duty to mitigate damages. Finally, it discusses the question to what extent equitable considerations and the respondent State’s economic situation should have an influence on the financial outcome of the award.
International Standards, Bases of Value, and Valuation Approaches
Authors: Marboe Irmgard
Published: June 2017

Modern globalized economy has made it necessary to identify uniform or at least comparable principles for the valuation of economic assets. This chapter introduces some of the best known and influential valuation standards and guidelines, such as the USPAP, the AICPA Valuation Standard, the International Valuation Standards, World Bank and MIGA Guidelines as well as UNCC propositions. In addition, some of the most important valuation bases are discussed briefly, such as market value, investment value, special value, synergistic value, and contractual value.
Methods of Valuation in International Practice
Authors: Marboe Irmgard
Published: June 2017

This chapter analyses how the three most important valuation approaches – the market approach, the income approach, and the asset based or cost approach – are reflected in the practice of international investment tribunals. After a short description of the theoretical concept of the respective approaches at the beginning, the corresponding cases are presented and analysed in some detail. The discussion shows that also other approaches are applied in the practice of tribunals, such as mixed methods, insurance value, tax value or contract based valuation. Tribunals sometimes also consider additional types of damages, such as loss of reputation, liability to subcontractors, costs for damage limitation, repair and maintenance, as well as costs for pursuing the claim.
The Impact of U.S. Litigation
Authors: Armas Oliver J , Pieper Thomas N
Published: June 2017

This chapter provides an account of some of the salient aspects of the U.S. legal system that will help non-U.S. readers identify the “litigation baggage” U.S. lawyers may bring to an international arbitration. U.S.-trained lawyers acting as counsel or arbitrators in such cases will naturally bring with them into arbitration certain expectations that flow from their U.S. litigation experience (i.e., the so-called “litigation baggage”), which may differ from those of their non-U.S. trained colleagues. This is a direct product of the adversarial model employed by the U.S. common-law legal system. In the adversarial model, the lawyers take control of the litigation as advocates through much of the process. U.S. litigators will seek to be more involved in case management, feel greater entitlement to broad discovery, and prepare for a witness-oriented hearing.
Drafting Considerations for Clauses Designating New York as the Place of Arbitration
Authors: Friedland Paul D , Nyer Damien
Published: June 2017

This chapter offers recommendations for drafting arbitration clauses that provide for international arbitration in New York. It addresses preliminary issues that, irrespective of the chosen seat of arbitration, must be considered. The literature on this topic is extensive and is summarized accordingly, but the basic rule when drafting an arbitration clause is to start with a model clause. This is so whether or not the clause provides for arbitration in New York. In addition, the chapter also discusses considerations that are specific to arbitration clauses designating New York as the place of arbitration, and offers proposed wording. And, as explained in Chapter 1, the arbitration law applicable to arbitrations located in New York stems from the Federal Arbitration Act (FAA), the New York Convention and the Panama Convention, and the New York Civil Practice Law and Rules (CPLR).
Jurisdiction
Authors: Bermann George A
Published: June 2017

This chapter assesses the allocation of authority in New York, a matter largely governed, in view of its subject, by federal law. It examines the different scenarios in which the question arises, attempting to describe the degree of independent judgment or deference that courts and arbitrators exercise in each scenario. Determining the existence and scope of arbitral jurisdiction is crucial to the legitimacy of an arbitration, which, after all, is a matter of contract. It follows that a court, if called upon to enforce an arbitration agreement or award, should first assure itself that the parties could—and, indeed, did—consent to arbitral jurisdiction. The more difficult questions relate to when such judicial inquiry should occur, how vigorous it should be, and what issues fall within its scope.
Obtaining Preliminary Relief
Authors: Smit Robert H , Robinson Tyler B , Whittaker Janet M
Published: June 2017

This chapter examines the rules, laws, and practices in New York relating to preliminary measures in support of arbitrations that are international in character. Preliminary relief, also referred to as interim relief or preliminary measures, broadly refers to the interim prescriptive measures a court or arbitral tribunal may take to ensure that the arbitration will provide an effective forum for the resolution of the parties’ dispute. Preliminary relief may contemplate, inter alia, protection of assets or property that is the subject of the dispute, preservation or production of evidence relevant to resolving the dispute, or vindication of the jurisdiction of the arbitral tribunal to decide the dispute. It thus serves to protect the efficacy of the arbitral process by equipping parties in arbitration with tools for preventing another party’s frustration of the process. Both arbitrators and national courts can issue preliminary relief in aid of arbitration.
Arbitration Hearings in New York
Authors: Kehoe Edward G , Chrostin Jessica Beess und
Published: June 2017

This chapter provides an overview of relevant administrative and logistical considerations for parties and counsel arbitrating an international dispute in New York City. These are analyzed under federal and New York state law as well as the arbitration rules of the major arbitration centers with offices in New York City. It briefly outlines the rules applicable to the appointment of arbitral tribunals for international commercial arbitrations seated in New York. The chapter then identifies the persons qualified to participate in these arbitrations, and discusses other procedural minutiae relevant to arbitrations proceeding. Moreover, as New York City is a prime business and holiday destination, the chapter lists myriad facilities and services for participants to make use of, in order to further streamline the arbitration process.
Challenging and Enforcing International Arbitral Awards in New York
Authors: Pierce John V H , Carter Janet R , Cinotti David N
Published: June 2017

This chapter addresses the key issues involved in challenging and enforcing international arbitral awards in New York. First, it looks at the procedural issues that a party must consider when seeking to challenge or enforce an international arbitral award in New York. These include, among other things, the form, timing, and service of the application, and the satisfaction of subject-matter jurisdiction, personal jurisdiction, and venue requirements. Second, this chapter examines the substantive grounds available to a party that seeks to vacate, or resist recognition and enforcement of, an international arbitral award in New York. Depending on the circumstances, including the jurisdiction in which the award was made and the terms of the parties’ arbitration agreement, these grounds may be those set forth in the FAA, the New York Convention, and the CPLR.
The Single Point of Entry Approach to Bank Resolution
Authors: Jennings-Mares Jeremy , Pinedo Anna T , Ireland Oliver
Published: June 2017

This chapter analyses the single point of entry (SPOE) approach to bank resolution. The strategy involves the application of resolution powers at the level of the top holding or parent company by a single resolution authority. This resolution authority would probably be located in the jurisdiction responsible for the global consolidated supervision of the banking group. The assets and the continuity of operations of subsidiaries are preserved, which avoids the need to commence distinct resolution proceedings at lower levels within the group. Although a resolution led by the home resolution authority may require assistance from a host authority, in terms of the application of resolution tools locally to support the top level resolution, or to bail-in intra-group debt claims, the principle is that no distinct, independent resolution proceedings should be required, as regards local subsidiaries of the group. The chapter addresses both the UK and US approach to SPOE.
The Operation of the Single Resolution Mechanism in the Context of the EU State Aid Regime
Authors: Kokkoris Ioannis , Olivares-Caminal Rodrigo
Published: June 2017

This chapter addresses the initiatives of the European Commission to maintain the financial stability of the banking sector. It analyses the regulatory reforms on bank recovery and resolution introduced by the EU aimed at creating a Banking Union, and provides an overview of the Bank Recovery and Resolution Directive (BRRD) by taking into account the crisis management tool innovations. It also offers a critical appraisal of the Single Resolution Mechanism (SRM). The initiatives examined here are envisaged in a two-pronged approach: through the uniform rules of the Banking Union and in a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism (SRM) and a Single Resolution Fund (SRF) on one hand, and its interrelation with the state aid rules of the Treaty for the Functioning of the European Union (TFEU) on the other.
The English Law Treatment of Lehman’s Derivatives Positions
Authors: Firth Simon
Published: June 2017

The Lehman Brothers’ insolvencies were not the first to have been experienced in the derivatives market but the size of the outstanding positions was unprecedented. Moreover, the collapse of the group triggered a period of extreme market turbulence, in which the liquidity of many products dried up and their values collapsed. This was the background against which counterparties sought to close out their positions and extricate themselves from their relationships with various members of the group. The work involved in agreeing the resulting claims has been very complicated and has taken a great deal of time, often as a result of debates about the interpretation of standard agreements. The judgments that have been given are of considerable importance to the derivatives market as they have helped to clarify the meaning of standard documentation that remains in widespread use. From a vantage point of some eight years later, this chapter draws some conclusions about the operation of this documentation and presents a critique of the case law that has emerged from the insolvency proceedings.
The Valuation of LBT Notes
Authors: Faber Dennis , Vermunt Niels , Davies Gareth , Helmantel Mark
Published: June 2017

This chapter explores the main issues faced by the Lehman Brothers Treasury Co BV in the Netherlands (LBT) bankruptcy trustees in the valuation of (claims arising from) Notes and Certificates (LBT Notes). Legal and economic aspects of the definitive valuation principles adopted by LBT’s bankruptcy trustees are explained in detail. Although Dutch law applied to the valuation of insolvency claims, some references to foreign valuation regimes is made to illustrate alternative options for the valuation of certain types of insolvency claims or the need for statutory reform. The chapter first provides an overview of the procedure applied by the LBT bankruptcy trustees to establish valuation principles and the role of certain main stakeholders in this process. This chapter also looks at legal and economic aspects of the general valuation regime under the Dutch Bankruptcy Code (Faillissementswet) vis-à-vis the valuation of insolvency claims in the LBT proceedings and concludes with some observations on future legal reform.
International Arbitration in Korea
Authors: Kim Joongi
Published: June 2017

This book provides an introduction to more than 140 arbitral cases and commentaries in Korea. It introduces the arbitration community to the jurisprudence and scholarship of this underappreciated but well-developed jurisdiction. The book encompasses all the major current and historical arbitration cases in Korea, alongside practical and scholarly commentary. In keeping with the growth of international arbitration in Asia, Korea is emerging as an alternative centre of arbitration, and the number of international arbitration cases involving Korean parties remains substantial in major arbitration institutions such as the International Chamber of Commerce, Singapore International Arbitration Centre, and Hong Kong International Arbitration Centre. The Korean Commercial Arbitration Board (KCAB) continues to report substantial growth in the number of international arbitrations. Furthermore, Korea’s Arbitration Act, as well as the KCAB’s own International Rules, were revised in 2016.
The Arbitration Agreement
Authors: Kim Joongi
Published: June 2017

This chapter provides an overview of arbitration agreements in particular—what they entail and how these agreements are formed. Arbitration after all begins with an arbitration agreement between parties to settle a dispute by means of arbitration. Korea’s 2016 Arbitration Act adopts the Model Law definition of an arbitration agreement. It provides that, alongside written requirements, electronic expressions of intent such as those made by email and telex, and other expressions by electronic means, can also be considered as arbitration agreements if the intent of the parties can be confirmed. Further requirements have been laid down in the seminal 2003 case Republic of Korea v Rotem Co. The chapter then goes on to cite further cases that demonstrate the various aspects of an arbitration agreement, such as its institutions, scope, validity and effect, and so on.
The Parties
Authors: Kim Joongi
Published: June 2017

This chapter features court cases showing the various legal obligations and obstacles undergone by the parties to an arbitration agreement, as well as other participating actors, such as exclusions, delegations, successions, and so forth. Some cases involve attempts to bring in other entities, who are not parties to the arbitration, for different reasons. Another section looks at the roles played by agents and non-parties acting on behalf of parties in arbitration disputes. The chapter also reviews the cases that have considered when a corporate entity can be disregarded. Finally, the chapter looks at whether the effect of an arbitral award extends to a successor party, which, like most of the cases covered in this chapter, remains a contentious issue.
Applicable Law
Authors: Kim Joongi
Published: June 2017

This chapter focuses on the choice and enforcement of applicable law in arbitration agreements. In international arbitration cases, Article V(1)(a) of the New York Convention provides that the validity of an arbitration agreement should be first determined under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made. Hence, if the parties have not chosen the applicable law for an arbitration agreement, ‘the default rule’ is that the law of the place of arbitration shall apply. This chapter addresses the question as it applies to Korea and considers cases where conflict or a misapplication of the law is in effect. Moreover, it also covers several cases in which courts have applied the Act on International Private Law (AIPL), Korea’s conflict-of-laws statute, to determine the applicable law.
Arbitration Procedure
Authors: Kim Joongi
Published: June 2017

This chapter provides case studies on the issues that arise during the arbitration procedure. It first details a case surrounding a disagreement over the language to be used in the proceedings under the KCAB Rules, before turning to other general topics regarding the arbitration procedure. The chapter here covers cases that reflect the essential steps in any arbitration proceedings: providing proper notice, document production and evidence, hearings, objections, and interim measures. Notably, the chapter shows how the 2016 Arbitration Act provides more extensive provisions than the 2006 Model Law in the taking of evidence by courts on behalf of an arbitration proceeding. At the same time, the Act has also incorporated most of the provisions on interim relief in the 2006 Model Law.
The Role of Courts and Law Regarding Counsel
Authors: Kim Joongi
Published: June 2017

This chapter details the role of courts regarding counsel in an arbitration proceeding. Korean courts will generally only review whether a case should be subject to arbitration or court litigation before an arbitral tribunal has been constituted. After constitution, they will defer to the arbitral tribunal. This development, however, is a recent one. From here the chapter explores a tribunal’s negative competence-competence ruling, which may be subject to court review, as well as the capacity of the courts to provide some measure of interim relief. The chapter also discusses objections during court proceedings, as well as the source of legal fees.
3 The Battle over Royal Immunity
Authors: HP Lee
Published: June 2017

This chapter discusses the constitutional crisis triggered by the ‘Gomez Incident’ (i.e. the reported assault of college hockey coach Douglas Gomez, by the Ruler of Johor, Sultan Mahmood Iskandar, on 30 November 1992. On 10 December, the House of Representatives of the Federal Parliament passed a motion declaring the assault as an abuse of power that goes against the spirit of the Federal Constitution. The House resolved that all necessary action be taken to ensure that similar incidents do not recur. Prime Minister Mahathir Mohamad, both in and outside parliament, indicated that the Constitution would be amended if such action were necessary in order to prevent any recurrence of the incident.
4 The Malay Rulers: A Royal Resurgence?
Authors: HP Lee
Published: June 2017

Episodes involving Malay Rulers and the constitutional dimension of their exercise of discretionary powers are evaluated. The future trajectory of their evolving role is discussed. After two major confrontations with the Mahathir government, by the mid-1990s, the Malay Rulers’ power was considerably diminished. The Rulers remained constitutional monarchs, functioning under advice unless permitted by the constitutional system to exercise discretionary powers. However, by 2008, the fortunes of the Malay Rulers had revived. The resurgence of the Rulers’ power is attributed to their decision to adapt to the requirements of a modern, democratic Constitution to preserve their powers. The changing political landscape has assisted the resurgence of the Malay Rulers. In the political vacuum left by the weakened national coalition, the popular vote lost or the first time since 1969. UMNO found it expedient to rehabilitate the Sultans for political uses; thus, providing opportunities for the Sultans to rebuild their power base.
8 Whither Constitutionalism?
Authors: HP Lee
Published: June 2017

This chapter examines the state of constitutionalism in Malaysia. It considers aspects of the constitutional system that have been impinged upon or are connected with major constitutional conflicts. It argues that the constitutional conflicts between the Rulers and the government and between the judiciary and the government have eroded those constraints that temper the exercise of executive powers. The various amendments to emergency power and preventive detention-power provisions of the Constitution place a greater responsibility on the Rulers and the judiciary to nudge the government along the path of constitutional rule. The regrettable aspect of these conflicts is that the influential role of both of these institutions has been diminished. The three major constitutional conflicts in the period from 1983 to 1993 demonstrate that Malaysia’s constitutional system is tilted in the direction of an overweening executive arm of government.
Host States
Authors: Burnett Henry G , Bret Louis-Alexis
Published: June 2017

This chapter is organized into two parts. The first part discusses the role of Host States. States have the power to regulate, manage, and tax the mining sector. Mining is heavily regulated due to its significant environmental and social impact. Host States are also parties to international mining disputes either as contracting parties or as regulators. States or State-owned mining companies enter into commercial agreements with respect to their mineral resources, which can result in contractual disputes, both domestic and international. The second part of the chapter describes the principal systems of mineral tenure. These include the landownership regime, which is the traditional system for the original ownership of underground minerals in common law countries. The State ownership regime, under which minerals in the subsoil belong to the State or are administered by the State on behalf of the nation, represents the most common approach to mineral tenure in civil law countries.
Purchase and Joint Venture Disputes
Authors: Burnett Henry G , Bret Louis-Alexis
Published: June 2017

This chapter discusses mineral rights and joint-venture disputes. The sale and purchase of an individual mining project will generally come down to the transfer of mineral rights. Disputes arising in connection with the transfer of mineral rights usually concern the validity and extent of the rights sold and, in particular, the conveyance of the surface rights associated with the project. Such disputes are often contractual in nature, and can be resolved through domestic or international arbitration. Joint ventures involve a relationship between two or more parties, one of which (the operator) will manage the joint venture for the benefit of its co-venturers. Disputes may arise in connection with the operations and management of the joint venture, particularly in purely contractual joint ventures. A frequent matter of contention is the definition of annual work programs and budget and their approval. Disputes may also emerge in connection with the buy-out and valuation of minority interests.
Environmental and Social Disputes
Authors: Burnett Henry G , Bret Louis-Alexis
Published: June 2017

This chapter examines the principal manifestations of social and environmental risks facing mining companies, emphasizing those resulting in international arbitration disputes. Environmental disputes can arise when mining companies fail to abide by environmental norms and regulations; or when these norms or regulations changes during the life of a mining project. Mining companies responsible for environmental contamination or pollution may be responsible for the cleanup of pollution to land or water supplies and to compensate victims of pollution. It is therefore imperative for mining companies to identify the environmental risks associated with their operations and to ensure that they strictly comply with applicable regulations. Social disputes may arise when two or more stakeholders in a project disagree about the material (economic) or immaterial (political, strategic, moral, religious, environmental, etc.) implications of access to and use of natural resources; it is very important to distinguish between discrete conflictual episodes that will necessarily occur in connection with large natural resource projects, and structural differences between stakeholders which can lead to the project’s demise.
Advocacy in International Mining Disputes
Authors: Burnett Henry G , Bret Louis-Alexis
Published: June 2017

Parties involved in an international mining dispute will want to make sure they are not only adequately represented by counsel, but have the best advocates possible. The effective presentation of the client’s claims and/or defences by counsel generally includes written advocacy (pleadings, memorials, and post-hearing submissions, if any); conveying the client’s position (i.e., “telling the story”) through written witness testimony or examination of the other side’s witnesses; and putting forth expert testimony on topics where such testimony may be necessary to help the arbitral tribunal understand key issues including, almost invariably, damages. This chapter discusses key advocacy concepts as they relate to mining disputes, with a particular focus on damages and valuation issues relevant to disputes in the mining sector.
Preserving Confidentiality in International Mining Disputes
Authors: Burnett Henry G , Bret Louis-Alexis
Published: June 2017

International mining disputes often involve highly sensitive technical and financial information that parties may want to protect from those outside of the dispute process and, indeed, even from the other side in the dispute process itself. While most arbitral rules contain general provisions regarding privacy, they do not provide a clear framework for how sensitive or confidential information is to be protected from disclosure. This is largely because it is for the parties to agree upon how confidential information is to be protected or, if necessary, for an arbitral tribunal to decide based upon an application of a party to protect certain information after both sides have had an opportunity to be heard. This chapter discusses document production in international arbitration; the strategic importance of maintaining confidentiality in international mining disputes; and procedural devices to preserve confidentiality in international mining disputes.
The Amicable Resolution of International Mining Disputes
Authors: Burnett Henry G , Bret Louis-Alexis
Published: June 2017

For many executives and other participants in the mining industry, litigation or arbitration is an avenue of last resort; the resolution of disputes is a priority. This chapter focuses on the informal resolution of international or domestic disputes, often referred to as alternative dispute resolution (ADR). The various forms of ADR differ from international arbitration in that they provide for a non-binding means to assist the parties in attempting to reach an amicable consensual resolution of the dispute. While mediation and conciliation are the most widely used form of non-arbitration ADR, parties also use other forms of ADR such as expert determinations, mini-trials, and neutral evaluations. One of the incentives for parties to amicably resolve an intentional mining dispute is that it gives them the opportunity to restore or improve the original bargain. The final section of the chapter discusses the timing and procedural steps of ADR.
The Significance of Commercial Customs, Usages, and Practices in the Resolution of Commercial Disputes
Authors: Thomas Rhidian
Published: June 2017

This chapter examines the related but distinct concepts of practice, custom, and usage; and how and the extent to which they ‘form part of the fabric’ of shipping law. It suggests that although it might be more accurate to speak of commercial custom, usages, and practices as an influence on the development of commercial law rather than as a source, they are very clearly part of the fabric of commercial jurisprudence. Their contribution may have diminished as the practice of domestic and international commerce has become more closely managed, professionalized, bureaucratic, and harmonized, with a proliferation of standard form documentation, and the promulgation of unified rules of practice. But their potential influence and contribution remains. These concepts are of equal application to litigation and arbitration, and the same legal framework and preconditions to validity apply, as also do the rules relating to burden and standard of proof.
The Modern International Conventions Governing the Carriage of Goods by Sea
Authors: Sturley Michael F
Published: June 2017

The two most recent international conventions governing the carriage of goods by sea—the Hamburg Rules and the Rotterdam Rules—include provisions that limit the enforcement of arbitration clauses in international commercial transactions. This chapter examines the arbitration provisions of those two recent conventions, explaining the theory behind their unusual approach. Although the arbitration provisions may seem illogical when considered in isolation, when examined in context they form a sensible part of a larger regime. Critics may question the policy choices that have been made in crafting those regimes, but those choices were largely driven by commercial considerations as affected stakeholders agreed on a compromise solution to a practical problem. In the end, the arbitration provisions are a sensible way to give effect to those policy choices.
Maritime Arbitration in Spain
Authors: Alba Manuel
Published: June 2017

This chapter examines the ‘delocalization’ of shipping disputes resulting from the widespread use of standard arbitration clauses channelling disputes to major arbitration centres, even if those disputes involve parties having no connection with such centres. It argues that such delocalization deprives certain countries or regions of the progressive accrual and consolidation of a transnational maritime law. Prior to the recent overhaul of Spanish maritime arbitration, the completely out-dated state and scarce usefulness of Spanish domestic maritime law had among its causes the lack of any vibrant maritime arbitration. The experience of Latin-American states likewise suggests that the state of the law somehow goes hand in hand with the existence of minimally specialized and satisfactory dispute resolution methods in the maritime field. These conclusions emphasize the importance of arbitration to the development of substantive law in a highly globalized field such as shipping.
Maritime Arbitration in China
Authors: Yu Guo
Published: June 2017

This chapter discusses recent developments in the resolution of maritime disputes in China. It explores the strengths and weaknesses of the litigation and arbitration services provided in arbitration centres on the Chinese mainland. Efforts to strengthen the appeal of arbitration in China have borne only modest fruit. This is due to a number of factors, including the wider accessibility of courts as compared to arbitration centres; the default options in standard form contracts adopted by BIMCO and others, which tend to refer to the centres in London, New York, and Singapore; and the lack of an ad hoc option in Chinese arbitration services. The tendency to arbitrate abroad can have significant consequences for Chinese companies, who have to make their case in a foreign language, following an unfamiliar procedure, and at a much higher cost than they would have to bear locally. The chapter concludes by proposing ways to address these issues.
The Contribution of Arbitration to the Law
Authors: Rix Bernard
Published: June 2017

This chapter reflects on the overall role of a maritime arbitrator. It emphasizes that the process of arbitrator selection tends to focus on their knowledge, experience, and expertise. They also have the duty to reason their awards—a duty owed not just to the losing party but perhaps more widely if one wishes to speak of a genuine transnational maritime law. The corollary of this is the need for transparency to ensure their accountability. While this might seem to conflict with the principle of confidentiality, this is probably because this principle is misunderstood: hearings should continue to be held in private to protect the confidentiality of evidence, however it does not necessarily follow that awards (appropriately anonymized) should be kept confidential ‘for all time’. As for the autonomy of the lex maritima itself, the chapter argues that one must not ignore its intimate and mutually enriching relationship with national laws.
Introduction
Authors: James Fowkes , Charles M Fombad
Published: June 2017

This volume, the first of a series of books on African constitutionalism, is devoted to the well-known issue of separation of powers and its contemporary characteristics on the continent. How do different systems in Africa understand and use the doctrine, and how successful are they in achieving its rationale of constraining the abuse of power? These questions are venerable for the good reason that they represent great and enduring problems for states to solve. Africa has long been troubled by excessive centralized power, and the separation of that power is a time-honoured response; as the continent turns increasingly to the task of building better states, the finer details of such responses take centre stage. The chapters in this volume consider how Africa’s executives, legislatures, and judiciaries relate to one another, and also consider the growing cast of other institutions that are joining the traditional tripartite picture in Africa, as elsewhere.
Part I Overview, 2 An Overview of Separation of Powers under Modern African Constitutions
Authors: Charles M Fombad
Published: June 2017

This chapter provides an overview of the doctrine of the separation of powers under modern African constitutions. It begins by discussing the origins and nature of the doctrine, then explains the main models of separation of powers that have influenced developments in Africa. Next it looks at the approaches in Anglophone Africa and in the civilian jurisdictions in Africa, followed by a discussion of emerging new patterns of hybrid institutions which have the potential to enhance accountability. It is argued that the doctrine of separation of powers is an important instrument for limiting governmental arbitrariness. It is critical to dealing with broader issues such as the inclusion and protection of minorities, equitable resource allocation, and corruption. An effective system of separation of powers that limits the opportunity for abuse of powers provides a solid platform to deal with other challenges to constitutionalism, rule of law, and good governance in Africa.
Part II The Relationship Between the Legislature and the Executive, 4 Kenya’s Budding Bicameralism and Legislative–Executive Relations
Authors: Conrad M Bosire
Published: June 2017

This chapter examines the changes in the 2010 Kenyan constitution, which have resulted in a higher degree of separation of powers between the legislature and executive with an elaborate system of checks and balances. The decision to opt for a presidential system of government (as opposed to a parliamentary or mixed one) and the re-introduction of the Senate are the defining features of the legislative and executive organs. However, the new system is superimposed on a longstanding institutional and political culture that was based on the presence of executive dominance in legislative affairs in a unicameral setting. The new system of government will, therefore, operate in a broader social, political, and historical context that will have a greater impact on their overall effectiveness.
Part II The Relationship Between the Legislature and the Executive, 5 Legislative–Executive Relations in Presidential Democracies: The Case of Nigeria
Authors: Shikyil Sylvester
Published: June 2017

This chapter examines how Nigeria’s legislature and executive interact and check each other in a manner that prevents the abuse of powers. Section 1 provides a general introduction. Section 2 focuses on the constitutional role of the legislature and the executive. Section 3 examines the features of Nigeria’s presidential system. Section 4 explores the areas of interaction between the legislature and the executive in the discharge of their constitutional roles. Section 5 discusses the causes of legislative–executive conflicts and their impact on good governance while Section 6 concludes. The chapter argues that although the constitution makes ample provisions for a clear separation of powers between the legislature, executive, and the judiciary as well as providing for checks and balances to guide the relationship between the three branches of government, democratic principles have not been fully embraced due to the military culture existing between 1966 and 1999.
Part III The Relationship Between the Judiciary and the Political Branches, 8 Relationships with Power: Re-imagining Judicial Roles in Africa
Authors: James Fowkes
Published: June 2017

This chapter examines the relationship between the executive and the judiciary in Africa. It identifies a particular tendency in African scholarship to see the executive as, at best, a potential threat, and the judiciary as the body that should serve as guardian against it. This prompts calls for more constitutional protections, greater insulation of judges from politics, and bolder judicial activity. Given the often sad history of the rule of law in Africa and the general dominance of executive power on the continent, this focus is both understandable and far from misplaced. However, it should not blind us to other configurations the separation of powers can assume. Comparative experience suggests that the judicial power can increase rapidly, a possibility that deserves to be considered in the African context. Executives may also pursue more admirable constitutional goals, and in that case a relationship of cooperation, not conflict, will be possible.
Part III The Relationship Between the Judiciary and the Political Branches, 9 Defying Assumptions about the Nature of Power Relations Between the Executive and Judiciary: An Overview of Approaches to Judicial and Executive Relations in Ghana
Authors: Kofi Quashigah
Published: June 2017

This chapter examines the relationship between the executive and the judiciary in Ghana. The relationship between the executive and the judiciary since Ghana’s independence may be classified according to the attitudes each exhibits towards the other, as follows: a period of outright emasculation of the judiciary by the executive; a period of suspicion and minimal trust; a period of mutual toleration; and a period of self-assertion by the judiciary. An examination of these shows a link between the nature of constitutional protection accorded the judiciary, the executive’s acceptance of democratic values, and the judiciary’s own demonstration of commitment to protecting its independence.
Part IV Independent Constitutional Institutions, 17 Constitutional Legitimacy and the Separation of Powers: Looking Forward
Authors: Michaela Hailbronner
Published: June 2017

This chapter takes a critical look at a number of the themes running through the book. It begins by arguing that the basis for constitutional legitimacy in many African states is tied to the turn against past ‘regimes of horror’, rather than rooted in strong expressions of popular sovereignty, but that this may well provide a sufficiently strong basis for judicial authority nevertheless. It also demonstrates how the strong concern with avoiding past mistakes influences African understandings of the separation of powers as a predominantly negative concept, designed to restrain state and in particular executive power, rather than to guide and steer it—in contrast to the broad aspirational provisions included in many African constitutions today. Finally, the chapter cautions against rejecting too readily political question doctrines where other principled arguments for judicial deference are lacking. The chapter concludes with a call for more South–South comparisons.
I Preliminary Matters, 2 The Use of Trusts in Financing Transactions: Special Issues Relating to Arbitration of Commercial Trusts
Authors: Mark Kantor
Published: June 2017

This chapter discusses the use of trusts in financing transactions and the overlap with arbitration. It attempts to identify the strengths and weaknesses of arbitration as a dispute resolution forum for commercial financing structures employing a trust vehicle. It begins by describing briefly several of the more prominent financing structures involving trusts: a securitization transaction employing an asset trust, a public or private bond offering with an indenture trustee, owner-trust lease financing, and mutual funds (known as unit trusts in the UK and other jurisdictions influenced by English law). It then illustrates the advantages and disadvantages of arbitration for each of these financing structures. It shows that only a discrete range of trust-related financings exists for which arbitration is equal or better suited when compared with a judicial forum.
II Trust Arbitration at the Institutional Level, 3 A Critique of the American Arbitration Association’s Efforts to Facilitate Arbitration of Internal Trust Disputes
Authors: E Gary Spitko
Published: June 2017

This chapter evaluates the American Arbitration Association’s (AAA) June 2012 Wills and Trusts Arbitration Rules. It considers the extent to which the Rules promote the private, expeditious, cost-effective, and expert resolution of will and trust disputes. It suggests that the drafters of the Rules did not think carefully enough about the ways in which will and trust disputes and litigation differ from commercial disputes and litigation. Thus, testators, settlors, or parties to a contract for will or trust arbitration who are considering the adoption of the AAA Wills and Trusts Arbitration Rules must give careful thought to modifying the Rules to better meet the needs of the potential will or trust disputes.
III Trust Arbitration as a Matter of National Law, 7 Legislative Approaches to Trust Arbitration in the United States
Authors: Lee-ford Tritt
Published: June 2017

This chapter explores the variety, validity, and viability of various legislative attempts to resolve the uncertainty surrounding mandatory arbitration of internal trust disputes. In so doing, it provides a descriptive and normative analysis of various state legislative approaches regarding arbitration of trust disputes and critiques these efforts so as to help legislators going forward. Five US states—Florida, Arizona, New Hampshire, Missouri, and South Dakota—have adopted statutes expressly authorizing arbitration of internal trust disputes. The chapter considers each of these enactments in detail. It also compares these provisions to the Uniform Trust Code (UTC) and various proposed statutes in this area of law, including the American College of Trust and Estate Counsel (ACTEC) model acts and a bill that was discussed but ultimately not adopted in Hawai’i.
III Trust Arbitration as a Matter of National Law, 8 Trust Arbitration in the United States Courts
Authors: Mary F Radford
Published: June 2017

This chapter discusses cases in the US state and federal courts in which arbitration has been used or sought to be used to resolve internal trust disputes. It begins with a discussion of situations in which all of the interested parties agree to take the dispute to arbitration (i.e. consensual arbitration). It then explores those cases in which the settlor includes a provision in the trust document that requires the parties to resolve disputes through binding arbitration. Because the beneficiaries typically do not sign the trust instrument itself, the question in these cases is the degree to which beneficiaries can be bound by this arbitration mandate. The chapter concludes with a description of four recent cases that illustrate the types of issues that parties and courts will encounter in the future as the use of arbitration in internal trust disputes becomes more prevalent