bluuebunny/crossref_metadata_2025 huggingface dataset:
Separability Revisited: Arbitration Clauses and Bribery
Authors: Pengelley Nicholas
Published: March 2022

The decision of the UK Court of Appeal in Fiona Trust & Holding Corp. v. Privalov has cemented the doctrine of separability of the arbitration agreement even more firmly in its place and shown that there is very little that can now be argued as falling outside of the jurisdiction of the arbitrators. Despite the seriousness with which it is regarded, bribery in the formation of a contract was held not to be sufficient grounds to remove the matter from the jurisdiction of the arbitrators. This article discusses the background to the Court’s decision and in particular reviews the need for “something more,” something that shows that there was fraud, misrepresentation, undue influence, or bribery in the formation of the arbitration agreement itself, before a Court will find that it is invalid.
Intra-EU BIT Investment Protection and the EC Treaty
Authors: Söderlund Christer
Published: March 2022

The “old” EU Member States, all being traditionally capital exporting countries, have never seen the need to enter into bilateral investment treaties (BITs) with each other. However, these “old” Member States normally have concluded BITs with the East European states formerly belonging to the Eastern bloc, countries which have now emerged as market economies, incorporating themselves in the community of European states. Most recently, Poland, Estonia, Latvia, Lithuania, and the Czech Republic have become EU Member States as of April 2004. This has resulted in a principally new concept, i.e., intra-EU BITs concluded between EU Member States. In this scenario, it has occurred in a number of instances that a new EU Member State, being targeted by an investment claim under an intra-EU BIT, has raised the jurisdictional defense that the BIT is no longer operative. This defense has been raised on the basis of a number of legal theories, that intra-EU investment matters are governed by EC law (making the intra-EU BIT désuet), that intra-EU BITs are superseded by EC law, and/or that the concept of intra-EU investor state arbitration is inconsistent with the EC legal order. Indeed, two recent arbitral awards in investment cases have had to deal with this issue. This article seeks to account for the legal theories which have been invoked in support of the proposition that intra-EU BITs are no longer effective and, at the same time, provide a discussion to illustrate why this proposition cannot be successfully invoked to invalidate intra-EU BITs.
CIETAC and its Work An Interview with Vice Chairman Yu Jianlong
Authors: Jianlong Yu , Moser Michael J.
Published: March 2022

In this article the Journal’s General Editor interviews Yu Jianlong, CIETAC’s new Vice Chairman and Secretary General. In his remarks Mr. Yu discusses CIETAC’s current work and plans for the future. He also addresses some of the criticisms leveled at CIETAC by foreign practitioners.
Discovery, Judicial Assistance and Arbitration: A New Tool for Cases Involving U.S. Entities?
Authors: Rutledge Peter B.
Published: March 2022

Limited discovery is one of the regularly cited advantages of international arbitration, as opposed to international litigation, particularly in contrast to litigation in the U.S. courts. Recent decisions by U.S. courts, however, have threatened to upend this comparative advantage. Invoking a little known U.S. law, 28 U.S.C. section 1782, these courts have permitted parties in an arbitration to petition for subpoenas issued by U.S. courts against their adversaries or third parties. Bucking the trend in the academic literature, which largely supports this development, this article opposes reading section 1782 to authorize subpoenas in support of an arbitration. Not only does this undermine the sensible limits on discovery in arbitration, it risks undermining the entire arbitral process by creating an asymmetrical tactical device that systematically disfavors U.S. companies: foreign parties can use section 1782 petitions as a tool both to extract information from their U.S. adversaries and to bolster their settlement position. To avoid these deleterious results, section 1782 should be interpreted not to encompass international arbitral tribinals.
A Procedural Road Map for the Recognition and Enforcement of Foreign Arbitral Awards in Romania
Authors: Pongracz Irina A. , Smeureanu Ileana M.
Published: March 2022

While the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards has applied in Romania since 1961, domestic courts conduct the exequatur procedure almost exclusively under applicable Romanian law, namely Law 105/992. A party seeking the recognition and enforcement of a foreign arbitral award in Romania should thus rely on the New York Convention, but should be equally prepared to follow the more specific procedural steps of Law 105/1992. This article sketches a roadmap through the exequatur procedure in Romania, by looking into the domestic legal framework and the local courts’ practice, and by comparing the provisions of the New York Convention with their counterparts in Romanian law.
Public Policy Considerations in International Arbitration: Costs and Other Issues A View from Singapore
Authors: Hsu Locknie
Published: March 2022

International arbitration awards are generally difficult to undo these days, given the legislative and judicial trend in many countries to take a restrictive approach towards review and appeals from such awards. However, where a costs award is made and there may be serious questions as to how those costs were arrived at by an arbitrator, an argument may be made that enforcement of such an award raises public policy concerns. This article examines two recent Singapore cases discussing the public policy ground under Singapore’s International Arbitration Act, one of which relates directly to an award on costs. It explores whether a too restrictive approach to this ground might prove counter–productive to the overall objective of promoting arbitration as a method of dispute resolution.
Public Policy Under the Indian Arbitration Act In Defence of the Indian Supreme Court’s Judgment in ONGC v. Saw Pipes
Authors: Sharma Sidharth
Published: March 2022

The “public policy” ground for setting aside an arbitral award has been the subject of considerable debate in the realm of arbitration law. The Indian Supreme Court in the case of ONGC v. Saw Pipes, while giving an expanded meaning to “public policy,” held that a “patently illegal arbitral award” is against public policy and hence could be set aside by courts on that ground. The judgment was widely seen as erroneous by legal commentators and practitioners alike. This article, however, attempts to present a counter–view and argues that the Indian Supreme Court’s judgment in Saw Pipes, contrary to the views of many, has in fact laid down a correct and sound legal principle giving the doctrine of public policy its full amplitude.
Principles of Treaty Interpretation in the NAFTA Arbitral Award on Canadian Cattlemen
Authors: Orakhelashvili Alexander
Published: March 2022

The NAFTA arbitral award on Canadian Cattlemen is specific in having its entire reasoning based on principles of treaty interpretation. Attempting to clarify the notion of “investment” under the NAFTA Agreement, this award carefully examines every principle of interpretation recognized under the Vienna Convention on the Law of Treaties that is applicable to the case. This article analyses the tribunal’s use of the methods of interpretation such as plain and ordinary meaning, object and purpose, context, subsequent practice and of supplementary means of interpretation. In terms of supplementary methods of interpretation, the tribunal’s reference to previous arbitral awards as supplementary means of treaty interpretation is evaluated, especially against the background of the lack of precedential force of international arbitral awards.
Definition of Investment in Bilateral Investment Treaties of South Asian Countries and Regulatory Discretion
Authors: Ranjan Prabhash
Published: March 2022

Due to the growing number of investor–state arbitrations and increasing number of bilateral investment treaties (BITs) being signed, it has become important to understand the implications of BITs for host countries. In this light, this article analyses the broad asset based definition of investment in the BITs signed by four South Asian countries, namely Bangladesh, Pakistan, India, and Sri Lanka. This analysis also assumes importance because these four countries, together, had signed 155 BITs at the end of 2007. Since the definition of investment is an important component of the investment treaties, this article attempts to understand the implications of a broad asset based definition of investment on the regulatory discretion of these four countries. In this context,this article also discusses the jurisprudence on the definition of investment that has emerged in the International Centre for Settlement of Investment Disputes (ICSID) cases and other international arbitration forums and its relationship with the broad asset based definition of investment which is found in most BITs.
Arbitration in Employment Relationships in France
Authors: Castellane Beatrice
Published: March 2022

French labour law mainly protects the needs of the employees and consequently takes precedence over private agreements. Bearing this in mind, arbitration is rarely used in labour disputes in France and whenever it is used, it is essentially restricted to disputes arising out of collective agreements between national or local unions of employers and national or local unions of employees.
Defining the Indefinable: Practical Problems of Confidentiality in Arbitration
Authors: Chung Katie , Hwang Michael
Published: March 2022

This article seeks to provide a comprehensive review of the international law on confidentiality in arbitration both in terms of theory and in practice (by examining national legislation and the rules of the various institutions). The essential point is that the problem is not in defining confidentiality but in defining the exceptions to the duty of confidentiality where such a duty is recognized. The argument is made that, in practice, it is difficult to come up with a comprehensive formula for, or list of, all the exceptions to the obligation of confidentiality. However, there is an examination of the most comprehensive and recent attempt to codify the exceptions to the duty of confidentiality in the New Zealand Arbitration Act 1996 (2007 Amendment). Nonetheless, even as the New Zealand Arbitration Act 1996 recognizes, no code can be fully comprehensive, and there must be room for an independent third party (either the tribunal or the curial court) to rule on permitted exceptions to the obligation of confidentiality.
The Challenges of Enforcing an Arbitral Award Against a Foreign State in the United States
Authors: Kantaria Saloni
Published: March 2022

A party seeking to enforce an arbitral award against a sovereign state or stage agency in the United States may face practical challenges due to the Foreign Sovereign Immunities Act (FSIA). In particular, the FSIA presents two hurdles which must be crossed by an arbitral award. This article will consider these hurdles and discuss whether the United States is an appropriate forum for a party seeking to enforce an arbitral award against a foreign state or agency, and whether the FSIA puts an arbitral award holder in an inferior position to a sovereign state or agency by granting it excessive immunity.
Punitive Damages in Arbitration: Panacea or Curse?
Authors: Noussia Kyriaki
Published: March 2022

In recent years, the everlasting debate over the award of punitive damages in arbitration has rather intensified, not least because in certain jurisdictions, such as the United States, the awards are now larger than in the past and the attitude of the U.S. courts has grown to allow arbitrators to hear claims for which punitive damages are available. In the United Kingdom, however, the legal scenery and judicial attitude are rather different and punitive damages are not awarded save in a few cases in the law of torts. This article comments and comparatively discusses the position in the United Kingdom and in the United States in relation to punitive damages. The analysis concludes that punitive damages should be awarded to deter outrageous breaches of contract in cases where compensatory damages are inadequate and gain-based damages are unavailable. This article also contemplates the future and viability of the measure of punitive damages and the lessons to be learnt for drafters of arbitration agreements.
Recognition and Enforcement of Arbitral Awards in Russia
Authors: Barnashov Alexey , Nacimiento Patricia
Published: March 2022

Recognition and enforcement are crucial elements of arbitration. Without the possibility for the winning party to enforce the arbitral award in its desired country, the whole arbitration was pointless. However, the enforcement proceedings are the only way for state courts to take influence on the outcome of the arbitral trial. Thus, even though uniform recognition and enforcement of foreign arbitral awards is the main goal of the almost worldwide applicable New York Convention of 1958, the interpretation of the provisions of this Convention is still up to national courts. While for example judges in Germany strictly stick to the rules set up by the Convention, courts in Russia tend to stress the meaning of these provisions. The following article is meant to point out difficulties in enforcing arbitral awards in Russia, as there is no predictable jurisdiction yet, when it comes to the enforcement of foreign arbitral awards. The article specifically will focus on the broad application of the public policy rule by Russian state courts.
When Arbitration Begins Without a Seat
Authors: Sabater Aníbal
Published: March 2022

A relatively unusual occurrence a few years ago, the commencement of arbitration proceedings without agreement on the seat has recently become a significant threat to the timely and expedient resolution of disputes. This is due in part to the proliferation of investment treaties that provide for non-International Centre for Settlement of Investment Disputes (ICSID) arbitration without setting out further procedural details. This article contains a detailed roadmap for arbitration participants faced with the need to determine how and where to establish the seat after the case has started.
Swiss Bilateral Investment Treaties: A Survey
Authors: Burger Laurence
Published: March 2022

This article focuses on Bilateral Investment Treaties (BITs) entered into between Switzerland and foreign countries, and introduces the key provisions contained in BITs, with concrete examples arising out of Swiss BITs. Switzerland has entered into more than one hundred BITs, and, as such, is one of the countries with the most BITs in force.
T.Co Metals, LLC v. Dempsey Pipe and Supply, Inc.: Are There Really No Limits on What an Arbitrator Can Do in Correcting an Award?
Authors: Kirby Jennifer
Published: March 2022

In T.Co Metals, LLC v. Dempsey Pipe & Supply, Inc., the U.S. Court of Appeals for the Second Circuit reversed a district court decision vacating an amended final award on the grounds that the arbitrator exceeded his power to correct his award by reconsidering and reinterpreting the record, rather than confining himself to correcting clerical errors. The Second Circuit found that, because the arbitrator had the power to interpret the institutional rules governing the proceedings, he could not exceed his power in interpreting those rules to allow him to amend his award as he did. The Second Circuit’s decision permits arbitrators to give themselves the power to reconsider decisions they make in final awards, thereby effectively allowing parties to appeal awards to the arbitral tribunal. Such a power is not found in any well-established arbitral rules, runs counter to the functus officio doctrine and undermines the finality of awards.
The Resurgence of Scotland as a Force in International Arbitration: The Arbitration (Scotland) Act 2010
Authors: Wilson David
Published: March 2022

The Arbitration (Scotland) Act 2010 has introduced significant and welcome changes to the law and practice of arbitration in Scotland, sweeping away centuries of inconsistency and uncertainty. Following the much-needed and long-awaited codification of the old common law, will Scotland’s popularity improve as a cost-effective and efficient seat for arbitration on the international stage? This article details the history of arbitration in Scotland and explains how the provisions of the 2010 Act will rectify the unsatisfactory system of arbitration that it is overruling. Although it remains to be seen to what extent the 2010 Act will affect Scotland’s reputation as a credible seat for international arbitrations, both Scots lawyers and non-lawyers alike are optimistic that the impact will be positive.
U.S. Anti-suit Injunctions in Support of International Arbitration: Five Questions American Courts Ask
Authors: Phull Chetan
Published: March 2022

International arbitration is an increasingly popular dispute resolution mechanism, however, the threat of foreign court intervention unremittingly remains. It is therefore important for a party seeking to enforce an arbitration agreement to know which jurisdictions are most amenable to protecting arbitration agreements, and what courts in these jurisdictions consider material in deciding whether to issue an anti-suit injunction (ASI) against the party seeking to sidestep arbitration through a foreign court order. In the United States, courts in certain jurisdictions in particular have shown a willingness to protect arbitration agreements through ASIs, in the presence of certain factors. The author has uncovered five fact-specific questions from the case law produced by these courts that are material to the courts’ issuance of ASIs. In the abstract, the questions consider: actual refusal to arbitrate and parallel foreign litigation; recognition and enforcement of an arbitration award enjoined by a “competent authority” under the New York Convention; the res judicata effect of U.S. judgments; the strong public policy in favor of arbitration; and bad faith by the party seeking to hinder arbitration. The additional element of whether an ASI to enforce an arbitration agreement is requested from an offensive versus defensive position is also considered in the discussion of the five questions.
Impartiality and the Issue of Repeat Arbitrators  A Reply to Slaoui
Authors: de Vietri Raphaël
Published: March 2022

Impartiality and bias in arbitration is of significant interest within the international arbitration community. Concern about repeat arbitrators is one facet of the topic, and was the subject of an article published in Volume 25 of Arbitration International in 2009. In reply, this article takes a second look at the institution and effect of repeat arbitrators. It argues, within a framework that attempts to balance the core values of international commercial arbitration, that repeat arbitration is not in and of itself a cause for concern. The commercial realities of international arbitration, and the value to be attributed to party autonomy, are highlighted in a bid to quell fears about the lack of comprehensive definition surrounding applicable disclosure requirements in circumstances of repeat arbitration.
International Arbitration and Sharia Law: Context, Scope, and Intersections
Authors: Alkhamees Ahmad
Published: March 2022

Recent decades have witnessed an increase in selecting international arbitration as an alternative method of resolving disputes. However, its acceptance and the interpretation of arbitration agreements have been notably influenced by Shari'a, as it is the primary source of law and public policy in many countries in the Islamic world. The growth in business relations between international companies and the Islamic world, mainly in the Middle East, in addition to the expansion of Islamic finance, stress the importance of understanding the Shari'a attitude towards international arbitration. This article seeks to examine the extent to which international arbitration is compatible with arbitration according to Shari'a law. Special attention will be paid to the arbitration regulations in Saudi Arabia as a country largely influenced by Islamic law. The principle argument of this article is that Islam has recognized arbitration as an alternative system for resolving disputes. Although the views of some Islamic jurisprudence schools are inconsistent with the practice of international arbitration, compatible views generally are found within other Islamic jurisprudence schools, and Muslims are permitted to follow it.
The New French Law on International Arbitration
Authors: Castellane Beatrice
Published: March 2022

French international arbitration law achieved a higher pro-arbitration level with the new Decree No. 2011-48 of January 13, 2011. The new provisions come into force after May 1, 2011. This is the first comprehensive reform of French international arbitration law since the adoption of the pre-existing legal framework of 1981. French case law, which provided a well-structured basis for this decree, proposed numerous pragmatic solutions to problems encountered in international arbitration. This new decree codifies previous significant French case law while also providing novelties, innovations such as the possibility for the parties to waive by express agreement the annulment of the award any time they choose; the one-month time period after notification of the award to request annulment; the enforceability of the award notwithstanding an action to set aside or an appeal against an enforcement order.
Clues to Construing the New French Arbitration Law  An ICC Perspective on Procedural Efficiency, Good Faith, and Independence
Authors: Darwazeh Nadia , Rigaudeau Baptiste
Published: March 2022

The new French arbitration law has been celebrated as a modern, if not post-modern, law. Two provisions of the law have particularly attracted the authors' curiosity. Article 1464 requires both arbitrators and parties to conduct the arbitration proceedings "efficiently" and in "good faith." But what does this dual obligation actually entail and how will it affect parties, counsel and arbitrators? Article 1456 codifies the obligation, previously established by French case law, that an arbitrator must disclose any facts affecting his or her independence or impartiality. In light of the current debate on arbitrator independence and disclosure in France (and beyond), triggered in part by the Tecnimont decision, what is the scope of disclosure pursuant to Article 1456? An ICC perspective provides answers to these questions. Indeed, the ICC is regularly confronted with exactly these issues: allegations of delay, misconduct and lack of full disclosure impacting an arbitrator's independence. This article discusses pertinent ICC cases, which offer a possible interpretation of these two provisions.
International Public Policy and Recognition and Enforcement of Foreign Arbitral Awards in Brazil
Authors: de Oliveira Leonardo V.P. , Miranda Isabel
Published: March 2022

This article considers if and how Brazilian courts have applied the international public policy exception when deciding whether to recognize and enforce foreign arbitral awards. In Brazil, like other jurisdictions, according to Article V(2)(b) of the NewYork Convention on Recognition and Enforcement of Foreign Arbitral Awards (the 'New York Convention'), when a court is faced with a challenge, it has to determine if the public policy exception refers to its national public policy or international public policy. In the past ten years, arbitration in Brazil has gained prominence and the number of challenges to awards, both national and international, has generated several decisions on how Brazilian courts interpret the public policy exemption. This article presents the Brazilian and the international view of what the international public policy is, as well as how the Brazilian and the international view is expressed in their jurisprudence on the topic in order to demonstrate and compare the direction being taken on the public policy exception by Brazilian courts.
The 2013 Hong Kong International Arbitration Centre Kaplan Lecture  Arbitral Decision-Making: Art, Science or Sport?
Authors: Reed Lucy
Published: March 2022

The following article is a print version of the annual Kaplan Lecture delivered by Lucy Reed in Hong Kong in December 2012.The lecture is divided into two parts. It begins with a discussion of heuristics and cognitive biases in adjudication. It relates various findings in experimental settings of how cognitive biases such as the anchoring effect, hindsight bias, egocentric bias, cultural effects and extremeness aversion may have an impact on adjudicators. The second part describes how, from a practical point of view, both advocates and arbitrators can reduce the potential for bias, and increase efficiency and responsiveness in arbitral proceedings.
Forum non conveniens: A Hidden Ground to Refuse Enforcement of Arbitral Awards in the United States
Authors: Bonnin Reynes Victor
Published: March 2022

The New York Convention provides for limited grounds for refusal to enforce foreign awards. Some US courts decisions have refused to enforce a foreign award using forum non conveniens doctrine, a ground for refusal not expressly mentioned in Article V of the Convention. This article reviews US decisions in this regard.
Ex Parte Interviews of Party-Appointed Arbitrator Candidates: A Study Based on the Views of Counsel and Arbitrators in Sweden and the United States
Authors: Elofsson Niklas
Published: March 2022

Depending on how they are used, ex parte interviews can either be a helpful tool when parties want to appoint qualified and suitable arbitrators, or they may undermine the impartiality and independence of the arbitrators. This study of almost 100 counsel and arbitrators in Sweden and the United States shows clear support for ex parte interviews as such, but not under all circumstances. The study indicates that the main concern is the lack of international consensus regarding the circumstances under which ex parte interviews are appropriate. For instance, the American respondents were much more reluctant to disclose the existence of ex parte interviews, and found discussions of the parties' positions and facts related to the dispute less problematic than the Swedish respondents. After a review of the current practice and regulation, this article explores how transparency as well as specific, non-mandatory rules seem to be the two most important and requested solutions in avoiding undesirable situations and challenges, and maintaining confidence in the fairness of international arbitration.
HKL Group Ltd v. Rizq International Holdings Pte. Ltd. and HKL Group Co. Ltd. v. Rizq International Holdings Pte Ltd.
Authors: Fry Jason
Published: March 2022

Relying on the already controversial Insigma Technology Co. Ltd. v. Alstom Technology Ltd. decision, the High Court of Singapore has recently upheld a pathological arbitration clause on the condition that the parties to the dispute obtain the agreement of the Singapore International Arbitration Centre (SIAC) or any other arbitral institution in Singapore 'to conduct a hybrid arbitration applying the International Chamber of Commerce (ICC) rules'. The court rendered its decision in HKL Group Ltd v. Rizq International Holdings Pte. Ltd. and upheld it in HKL Group Co. Ltd. v. Rizq International Holdings Pte. Ltd. This note examines the rationale for the court's decision and whether it was justified in the circumstances. The note also examines whether the court's reasoning has wider and perhaps undesirable implications for international arbitration in the Asia-Pacific region.
The IBA Guidelines on Party Representation in International Arbitration
Authors: Honlet Jean-Christophe
Published: March 2022

The IBA Guidelines on Party Representation in International Arbitration address a variety of issues of principle and practice regarding the conduct of Party representatives in international arbitration. Rather than constituting a code of ethics, they attempt to promote certain 'international best practices' regarding such questions as ex parte communications, submissions to the arbitral tribunal, document production, witnesses and experts, without prejudice to the application of mandatory rules that may locally apply to Party representatives. A specific section of the Guidelines is devoted to 'remedies for misconduct' that may be applied by arbitral tribunals, an area which had more traditionally belonged to the realm of domestic courts and local bar associations.
A Tale of Two Arbitration Clauses: The Lessons of Oxford Health Plans LLC v. Sutter for the Future of Class-Action Arbitration in the United States
Authors: Banks Hannah , Howes B.Ted
Published: March 2022

The US Supreme Court recently issued another decision on the subject of 'class-action arbitration'. While the decision permitted the class-action arbitration in question to proceed, a closer review of the opinion demonstrates that the Court has not changed its opinion on the subject. Unless there is an explicit agreement in the arbitration clause, parties should not expect class arbitration in the United States.
ICC Hybrid Arbitrations Here to Stay: Singapore Courts Treatment of the ICC Rules Revisions in Articles 1(2) and 6(2)
Authors: Bloch Christopher , Nicholls Anthony Cheah
Published: March 2022

This article examines the recent case of HKL Group Co. Ltd. v. Rizq International Holdings Pte. Ltd., where the Singapore High Court refused to enforce the ICC's 2012 revisions to Articles 1(2) and 6(2) of its Arbitration Rules. These revisions ban so-called 'hybrid arbitrations' and mandate ICC administration for every arbitration that is conducted under the ICC Rules 2012. Singapore was the first jurisdiction that refused to enforce these provisions in favour of party autonomy in 'hybrid arbitrations'. Other pro-arbitration jurisdictions may follow suit once cases arise challenging this mandate.
Loose Lips Sink Ships: Mandatory Confidential Arbitration of Employment Disputes as a Reputational Risk Management Tool
Authors: Novovic Miloš
Published: March 2022

Forced arbitration of employment disputes has been heavily criticized for various reasons, but one of its particularly useful applications should not be overlooked: assuming that confidentiality provisions are properly set in place, it can be a powerful safeguard from the reputational damage arising out of employment disputes. For instance, not only would employers benefit from keeping potential fall-outs with their employees away from the public eye, thus protecting the "good employer" image; the employees, too, would benefit from not having their potential transgressions on a public record. In a world where reputation is everything, that additional layer of protection might just be what it takes to make sure that what happens inside the corporate walls, stays inside the corporate walls-for the sake of reputation of both employers and employees alike. This article analyzes the public policy implications of such practice, as well as its legal and practical limitations.
The Impact of Party Impecuniosity on Arbitration Agreements: The Example of France and Germany
Authors: Kühner Detlev
Published: March 2022

The impact of party impecuniosity on arbitration agreements is dealt with quite conversely in France and in Germany: whereas the French concept consists in saving the arbitration agreement to the best possible extent, the German approach is to consider that impecuniosity leads to a situation in which the arbitration agreement becomes incapable of being performed. The present article identifies the pros and cons of both concepts and makes some suggestions on how best to circumvent a number of problems in practice.
The Arbitrability of Investor-State Taxation Disputes in International Commercial Arbitration
Authors: Brazier Lauren
Published: March 2022

Despite the expanding scope of arbitrability, the arbitrability of tax disputes remains unsettled. While it has been a hotly discussed topic in international investment arbitration, it also warrants attention in the context of international commercial arbitration. This article provides an in-depth examination of the arbitrability of investor-State taxation disputes in international commercial arbitration. It concludes that there is a logical distinction between taxation disputes that directly implicate the sovereignty of States (inarbitrable), and those that do not (arbitrable). In reaching this conclusion, this article also yields insights into arbitrability more generally.
The Protection of Foreign Direct Investment in Latin America: Where Do We Stand on International Arbitration?
Authors: Giupponi M. Belén Olmos
Published: March 2022

The article explores the current implications of regional and bilateral investment treaties in Latin America, underlying the latest developments and challenges concerning international arbitration. The main argument advanced is that despite criticisms arising out of investment litigation, Latin American countries have moved away from the Calvo doctrine and continue to embrace international arbitration to settle state-investor disputes. In order to support this argument, the article presents a systematic study of the legal framework and the flow of cases brought against Latin American states before the International Centre for the Settlement of Investment Disputes (ICSID) and under the United Nations Commission on International Trade Law (UNCITRAL) Rules.
International Commercial Arbitration in Latin America: Myths and Realities
Authors: Jana L. Andrés
Published: March 2022

This article addresses the past and present of international commercial arbitration in Latin America. Differentiating between international commercial arbitration and investment arbitration and reviewing the evolution of international arbitration in the region, it shows that most Latin American countries have embraced today a modern normative architecture of international commercial arbitration. A number of countries seem to be successful forerunners on that path. The legal framework has been adjusted and judicial decisions make an effort to overcome formalistic and idiosyncratic domestic trends. The author argues that Latin America’s negative attitude towards international commercial arbitration has been rather a myth that has no room in the today’s reality.
Techniques and Tradeoffs for Incorporating Cost- and Time-Saving Measures into International Arbitration Agreements
Authors: Profaizer Joseph R. , Weiss Adam J. , Klisch Erin E.
Published: March 2022

Empirical research reveals that users of international arbitration view undue time and cost as international arbitration’s worst attributes. This article offers some potential solutions to combat this increasing dissatisfaction, focusing on a prophylactic approach in which parties are encouraged to negotiate and incorporate cost- and time-saving measures directly into the arbitration clause of their underlying contract.

In the early stages of a commercial relationship, parties operate behind a ‘veil of ignorance’, a concept derived from modern social philosophy in which members of a nascent society are prevented from knowing what position they will occupy in that society. Without the knowledge of how the future society’s rules and policies might affect them personally, each participant will be naturally inclined to promote, agree to, and implement rules and policies that are fair and advantageous to all. Likewise, if parties to a nascent commercial relationship address cost- and time-saving techniques during the earliest stages of that relationship, they will be incentivized to agree to a dispute resolution framework that reduces time and costs more effectively than if they sought to implement those measures after a dispute has arisen.

This article discusses several suggested measures designed to increase the economy and efficiency of international arbitration, along with a discussion of the respective tradeoffs and practical limitations of including those measures in the parties’ arbitration agreement.
Accessing and Assessing Australias International Arbitration Act
Authors: Nottage Luke , Morrison James
Published: March 2022

This review identifies many positive trends in international commercial arbitration law and practice in Australia, especially over the last decade. Yet much work remains to be done, in light of some ongoing uncertainties in the statutory regime and associated case law, and comparatively few international arbitration case filings. The biggest challenge is for law reformers in relation to more controversial issues such as the arbitrability of various types of disputes, mandatory laws impacting on forum selection and choice of laws, the precise contours of the competence-competence principle, and confidentiality of arbitration-related court proceedings. Hopefully, a new phase of comprehensive legislative reform will be conducted through more open and structured public consultation than the three piecemeal amendments since 2015.
Two Steps Forward, One Step Back: A Report on the Development of Arbitration in the United Arab Emirates
Authors: Farhad Alain N.
Published: March 2022

Optimists will note that arbitration in Dubai has made great progress in the past decade. Thus, the United Arab Emirates acceded to the New York Convention in 2006 and the number of arbitration cases relating to the economy of the United Arab Emirates (UAE) has increased significantly. Pessimists will retort that much of this progress has been overshadowed by a small number of incongruous court decisions disregarding the New York Convention or revealing an overly formalistic approach to arbitration.

The most recent developments in the practice of arbitration in the UAE, addressed in this report, confirm that development is not always linear. It is sometimes a succession of steps forward and steps back. But beyond these ups and downs, observers of arbitration in the UAE should not lose sight of the bigger picture: arbitration in the UAE has made significant progress in a very short period of time. A much awaited and much debated new arbitration legislation, which reportedly has been in preparation for years, would be helpful to consolidate this progress and give the UAE the place it deserves on the global map of international arbitration.
An Anti-Enforcement Bias? The Application of the Substantive Public Policy Exception in Polish Annulment Proceedings
Authors: Koepp Johannes , Ason Agnieszka
Published: March 2022

This article examines how Polish courts have dealt with annulment applications based upon purported violations of substantive public policy and measures the Polish jurisprudence against the standards developed by the national courts in England, France, Switzerland and Germany. It identifies an anti-enforcement bias of the Polish courts which, in sharp contrast to their European counterparts, still favour an expansive interpretation of the public policy exception and have surprisingly little qualms in engaging in a thinly veiled merits review with unclear boundaries. The markedly interventionist approach of the Polish judiciary encourages annulment applications, which both ill-serves the arbitral process generally and undermines recent efforts to promote Poland as a desirable seat for international arbitration specifically.

 

A solution to these ills can only be found in a narrower interpretation of the substantive public policy exception, in harmony with the standards developed by the national courts in the major European arbitration centres.
State Succession to BITs in the Context of the Transfer of Territory of Macao to China: Lessons Learned from the Sanum Saga
Authors: Dumberry Patrick
Published: March 2022

This article examines the Sanum award and two decisions of Singapore courts dealing with the question of whether the China-Laos bilateral investment treaties (BIT) extended to Macao after the cession of this territory to China in 1999. The award and the decisions provide the first comprehensive analysis regarding the question of state succession to BITs. The article examines how these decisions have analysed the ‘moving treaty frontiers’ principle and the different exceptions set out under Article 15 of the 1978 Vienna Convention on Succession of States to Treaties in the specific and unique context of a cession of territory. These decisions also contain the first assessment of the territorial scope of application of Chinese BITs regarding Special Administrative Regions (SAR) after their handover to China. The article discusses the likely impact of the findings of the award and the decisions on the application of other Chinese BITs to the territory of Macao and that of Hong Kong.
Thou Shalt Not Arbitrate: Sovereign Debt and Investment Arbitration
Authors: Megliani Mauro
Published: March 2022

This article addresses the issue of the interaction between sovereign debt and investment arbitration. The point has been recently highlighted by the Report of the UN Independent Expert on Sovereign Debt. In this context, investment arbitration has been regarded as capable of disrupting an orderly debt restructuring, since creditors may prefer operating outside a restructuring process and submitting their claims to arbitration. Arbitration becomes an escape route for creditors who do not want to accept take-it-or-leave-it conditions and are faced with domestic courts who decline to hear the case on the basis of the immunity doctrine. Arbitration may well be the ideal venue to balance the interests at stake. Under a human rights approach, creditors are called not to lend or have to cease lending when doing so would affect the socio-economic rights of the population. Under a necessity approach, the obligation of paying interest and reimbursing capital would be suspended to the extent that it would affect the duty of a state to provide essential services to the population. Under a transnational public policy approach, a claim is not enforceable when doing so would infringe the socio-economic rights of the population. Under an expropriation approach, the compensation for a default should consider the speculative intent in purchasing bonds after the default and award not the nominal value but the purchase price.
A Model Multilateral Treaty for the Encouragement of Investment in Climate Change Mitigation and Adaptation
Authors: Elrifai Silke Noa , Rusinek Hans , Sinsel Simon R.
Published: March 2022

The Paris Agreement sets out to limit global warming to below 2°C, yet the pathway to reach that goal is unclear. This specifically applies to the mobilization of investment for climate change mitigation and adaptation. One way to mobilize foreign investments is to create a favourable investment climate with the help of multilateral investment treaties. In this article, a model treaty is proposed to considerably increase climate-friendly investments while maintaining regulatory flexibility for signatory states. Building on Design Thinking principles, key challenges for the success of such a treaty are identified and provisions are crafted incorporating feedback from twenty-five experts from finance, policy, and legal domains. The proposal addresses four key challenges: (1) define climate change mitigation and adaptation investments; (2) decrease the barrier of limited access to capital due to perceived and actual risks; (3) combat insufficient investor trust in long-term contracts; and (4) retain states’ ability to regulate. The treaty proposal addresses these challenges by proposing, inter alia, a definition for mitigation and adaptation investments that establishes a link to the Nationally Determined Contributions under the Paris Agreement, an innovative financing mechanism, a conversion of host country subsidies to investment grants, and a performance verification using latest distributed ledger technology.
Separability of Arbitration Agreement in Mutual Termination of Contracts in India: A Legislative Guideline
Authors: Mohanty Gautam , Bhargava Raghav
Published: March 2022

The separability for an arbitration agreement from the underlying contract is a well-established theory in commercial arbitration by courts and arbitral tribunals across the globe. However, the position becomes complex in circumstances where the underlying contract is mutually terminated between the parties. Jurisdictions across the globe have adopted a different approach to this kind of separability either through legislative provisions or judicial decisions. Unfortunately, the position remains rather unclear in India due to conflicting judicial decisions of the Bombay High Court and lack of any authoritative ruling by the Supreme Court of India. This article aims to conduct a comparative analysis of various national systems as well as international rules and arbitral institutions regarding this theory and to suggest the way forward for India.
Striking a Balance Between Assistance and Interventionism: The Role of Courts in Rwanda-Seated Arbitrations
Authors: Muganga Didas Kayihura , Mwemezi Rutta John , Munyentwari Claire Umwali
Published: March 2022

The African Arbitration Association was established in 2018 and its headquarters is in Kigali, Rwanda. This choice of location signals that Rwanda has made meaningful strides in improving its arbitration environment, at least in the opinion of African states. Many questions will arise as to whether Rwanda-seated arbitrations do indeed rest in a legally friendly environment, and receive optimum support of courts which act to foster the efficiency and effectiveness of arbitrations. The interplay between courts and arbitral tribunals in dealing with Rwanda-seated arbitrations is the subject of this article. Party autonomy, which broadly underscores the freedom of the parties to decide how their disputes should be resolved, is one of the most important principles in arbitration. This principle naturally translates to the autonomy of the arbitral process and notably the freedom of this process from undue judicial interference. While courts are indispensable in the success equation of the arbitral process, too much judicial intervention in matters of arbitration may have serious repercussions on the efficiency of arbitration. This article examines the autonomy of the arbitral process under the law and practice of arbitration in Rwanda. In doing so, the article discusses different practices in the leading places of arbitration on the interplay between courts and arbitral tribunals in dealing with matters of arbitration and compares these with the corresponding law and practice governing Rwanda-seated arbitrations. It concludes that, with the pro-arbitration stance often demonstrated by the courts in Rwanda and their sparing involvement in the arbitral process, the arbitration environment is as friendly as it is in most other states that are signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention, 1958).

Rwanda-Seated Arbitrations, Mandatory Provisions, Party Autonomy, Jurisdictional Challenges, Kompetenz-Kompetenz, Negative Effect of Kompetenz-Kompetenz, Manifestly Void, Stay of Court Proceedings, Judicial Non-Interference, Pro-Arbitration Stance, One-Stop Adjudication