bluuebunny/crossref_metadata_2025 huggingface dataset:
Judicial Intervention in International Commercial Arbitration: Implications and Recent Developments from the Indian Perspective
Authors: Thadikkaran Manu
Published: March 2022

The rules of arbitration ensure party autonomy, especially in international commercial transactions. However, the efficiency of the technique would be hampered if concurrent authority is conferred on the judiciary over arbitral proceedings. The scenario in India is notable in this aspect. The attitude of scepticism reflected in India, a developing country, towards an alternate dispute settlement mechanism such as arbitration may be attributed to its inexperience as well as its history. In India, the exercise of concurrent authority by the judiciary is evident from the judgments of Bhatia International and Venture Global. The law laid down by the Supreme Court in these judgments interprets the Arbitration and Conciliation Act in a manner contrary to the spirit of the UNCITRAL Model Law, and has received wide criticism from the global business community.

Subsequently, however, as a means of damage control, the Indian judiciary interpreted arbitration agreements giving importance to the seat of arbitration to prevent judicial intervention. The 'seat theory', which is internationally accepted in the arena of arbitration, giving the judiciary of the place of the seat of arbitration the authority to intervene and set aside arbitral awards, was accepted and adopted by the Indian legal system indirectly. However, the question remains as to the effectiveness of this attempt by the Indian judiciary in containing the effects of this position of law on the Indian economy. However, the reasoning of the Bhatia judgment was justified in its circumstances. Matters regarding interim measures and collection of evidence can be enforced effectively by the judiciary of the place of the subject matter of arbitration. With regard to these limited aspects, all judiciaries must be granted the authority over arbitral proceedings to ensure efficient enforcement of awards. Hence, necessary legislative amendments, along with support from the judiciary, are essential for India to adopt a pro-arbitration regime.
Contract Interpretation in International Arbitration
Authors: Rosengren Jonas
Published: March 2022

The diverging approaches to contract interpretation in different legal systems often emerge in international commercial arbitrations. The differences may concern not only the methods for ascertaining the parties' intention or the evidence considered in this process but also the interplay between interpretation and legal rules or doctrines. This article seeks to go beyond the rhetorical statements about contract interpretation and identify some differences in approach, examine their possible implications and discuss the extent to which contract interpretation is controlled by legal rules. This article also considers relevant transnational law and discusses how parties may argue matters relating to contract interpretation in international arbitrations.
Should an Arbitral Tribunal Order Security for Costs When an Impecunious Claimant Is Relying upon Third-Party Funding?
Authors: Kirtley William , Wietrzykowski Koralie
Published: March 2022

The list of issues surrounding the recent advent of third-party funding in the arbitration arena is long, and much has been written about the impact of third-party funding on issues regarding confidentiality, impartiality, the attorney-client privilege, disclosure and access to justice. An additional topic from which much debate has sprung in relation to third-party funding is its impact on decisions to award security for costs, namely, whether its use should prompt arbitrators to grant security for costs. It is this issue that this article investigates. After an introduction on security for costs, this article sets forth the opposing views expressed by third-party funders, commentators and arbitrators in treaties, articles and conferences, on the impact of third-party funding where security for costs is requested. The most recent arbitral awards and national case law which may assist practitioners to reach a conclusion on this sensitive question are also detailed. This article concludes with the authors' view on the most appropriate approach towards security for costs in the presence of third-party funding.
Optional Additions to Standard Arbitration Agreements Issued by the European Court of Arbitration
Authors: Rubino-Sammartano Mauro
Published: March 2022

When the parties refer a dispute to arbitration, they generally use a standard arbitration agreement. Very important issues such as the coaching or non-coaching of witnesses, the role of the party appointed arbitrators, the deadline for amendments to claims and for evidence, and possible sanctions for delaying tactics, frequently remain undecided and give rise to very serious problems. These Optional Additions draw the parties' attention to these delicate issues and offer alternative solutions to them.
ICSID Annulment Committee Appointments: Too Much Discretion for the Chairman?
Authors: Collins David
Published: March 2022

This article critically examines the system by which individuals are appointed to International Centre for Settlement of Investment Disputes (ICSID) annulment committees. It observes the largely unilateral and highly discretionary role of the ICSID Chairman in this process, urging greater participation in the selection of annulment committees by the Member States of ICSID in order to improve the transparency and legitimacy in this crucial feature of ICSID dispute settlement. A procedure similar to that adopted with respect to the World Trade Organization's Appellate Body may be instructive in this regard.
House of Cards: The Relevance of Legitimate Expectations under Fair and Equitable Treatment Provisions in Investment Treaty Law
Authors: Campbell Christopher
Published: March 2022

This article examines the common practice of considering the relevance of an investor's 'legitimate expectations' in determining whether they have been afforded fair and equitable in investment treaty law disputes. The legitimate expectations doctrine has been divined from fair and equitable treatment provisions commonly found in international investment treaties. This article examines the different types and sources of fair and equitable provisions from which the legitimate expectations doctrine has been derived, and examines the development of both the customary international law minimum standard and the development of the law in arbitral practice. On examination, it is considered that neither customary international law nor the standard fair and equitable treatment provisions found in international investment treaties provide a sufficient basis for the consideration given to an investor's legitimate expectations in investment treaty law; this has been rather an invention of arbitrators. Furthermore, many arbitral tribunals have been severely lacking in grounding their decisions in law, generally citing other tribunal decisions which do not create law, or no law at all. Finally, it is considered that in addition to being a doctrine that has made its way into the canon of investment treaty law without any legal basis, the expectations of investors should be disavowed as an inappropriate standard by which to judge state conduct.
The Emergency Arbitrator Procedure under the 2012 ICC Rules: A Juridical Analysis
Authors: Baigel Baruch
Published: March 2022

This article examines the International Chamber of Commerce (ICC's) Emergency Arbitrator procedure as provided by the 2012 ICC Rules. Emergency arbitration procedures are relatively new creatures, and their increasing prevalence signifies their importance. The ICC Emergency procedure raises important, potentially novel, doctrinal questions which touch on the very nature of arbitration: can or should an Emergency Arbitrator be properly described as an arbitrator? How does the jurisdiction of the Emergency Arbitrator interact with the jurisdiction of the court and the arbitral tribunal? These questions become of immense practical import in the context of enforcement. This article analyses the specific provisions of the ICC Emergency Arbitrator procedure and seeks to anticipate the way in which existing arbitration statutes, case law and conventions might perceive the orders of an ICC Emergency Arbitrator. It is the view of this author that, on close analysis, the ICC Emergency procedure cannot and should not be properly described as arbitration in the traditional sense. The parties who sign up for the new ICC Rules intend for the ICC Emergency procedure to be a sui generis contractual creature which shares many similarities with the 1990 ICC Pre-Arbitral Referee, albeit in a new packaging and using different labels.
Unilateral Jurisdiction Clauses: The Case for Invalidity, Severability or Enforceability
Authors: Draguiev Deyan
Published: March 2022

This article presents a study of the so-called 'unilateral' ('optional', 'hybrid') jurisdiction clauses combining arbitration and choice of court options, which business tends to favour as such clauses seek to designate a method of dispute resolution that provides a more favourable position for one of the parties to an agreement and ensure better enforcement against a debtor's assets. However, there are a growing number of jurisdictions where courts have issued decisions that declare such clauses either invalid or as having a significant defect. This study makes a review of both common law and continental jurisdictions and focuses particularly on a number of decisions issued recently in continental jurisdictions making an assessment of the arguments that are typically employed by courts in order to find that a unilateral clause is invalid. Finally, this study proposes a method of interpretation of unilateral jurisdiction clauses which favours their validity or, where there is a significant defect, proposes partial invalidity and severance instead of invalidity of the entire clause.
Are All Transfers of an Investment Protected by the Treaty Which Deals with the Original Investment?
Authors: Rubino-Sammartano Mauro
Published: March 2022

The increasing number of disputes related to investment includes claims made by a party which is not the original investor, but which has inherited the original investment through a transfer of it. The transfer gives rise to various issues which are argued and decided in various ways.
Questioning the Role of International Arbitration in the Fight against Corruption
Authors: Rose Cecily
Published: March 2022

International arbitration does not represent a promising mechanism for the adjudication of corruption in the context of international business transactions, although parties appear to be raising allegations of corruption with increasing frequency in arbitration proceedings. This article surveys over fifty arbitral awards, spanning many decades, and rendered by tribunals of the International Centre for Settlement of Investment Disputes and the International Chamber of Commerce, tribunals applying the arbitral rules of the United Nations Commission on International Trade Law and the Iran-United States Claims Tribunal. On the basis of this survey, the article argues that arbitral tribunals have made an unsatisfactory contribution to the adjudication of corruption allegations partly due to avoidance techniques employed by both tribunals and parties, as well as some questionable reasoning on the part of arbitral tribunals. Most significantly, however, tribunals have faced major evidentiary problems because parties have tended to provide inadequate evidentiary support for corruption allegations. Tribunals could pursue five potential solutions to these evidentiary problems, namely drawing adverse inferences, placing greater reliance on circumstantial evidence, lowering the standard of proof, shifting the burden of proof, and drawing on factual findings in domestic proceedings. Finally, this article concludes by arguing that arbitral tribunals are also ill-suited to the adjudication of such claims because the public interest in the adjudication of corruption allegations is at odds with the relatively closed, non-transparent character of arbitration.
Distilling Principles of Law from ICSID Cases against Ecuador
Authors: Bento Lucas V. M.
Published: March 2022

Ecuador's journey as a party in ICSID arbitrations developed jurisprudence that explains, confirms and develops principles of law that will be of interest to the international legal community. This article reviews all decisions and awards by ICSID tribunals against Ecuador and distils the key principles of law derived from those decisions to guide tribunals, lawyers, and policy-makers in future disputes. It presents these principles in thematic fashion, and follows the typical progression of an ICSID arbitration, from tribunal constitution to annulment proceedings. It concludes by drawing lessons about the praxis of international investment arbitration and its future.
What Is an Award, Anyway?
Authors: Kirby Jennifer
Published: March 2022

This article tracks a talk the author gave at the tenth anniversary conference of the International Chamber of Commerce on International Arbitration in Latin America. The author considers the question of what constitutes an award as a question more of policy than of definition. Her analysis focuses on the power arbitrators wield when rendering awards and emphasizes the importance that awards be not only enforceable, but right.
Five Proposals to Further Increase the Efficiency of International Arbitration Proceedings
Authors: Respondek Andreas
Published: March 2022

If international arbitration wishes to maintain its competitive edge versus other forms of dispute resolution, urgent reforms are necessary. As part of the service industry, institutional arbitration has to become much more customer oriented. While recently a number of arbitral institutions have revised their rules (e.g., PCA, HKIAC, VIAC, KLRCA, Finland Chamber of Commerce, etc.), these revisions seem far from sufficient. Based on recent cases where the author was involved, detailed proposals will be developed how to further improve the efficiency of international arbitration proceedings for the benefit of the parties and ultimately also arbitral institutions. The proposals to be presented will focus on: (i) 'piercing the arbitral veil'; (ii) measuring the success of arbitral institutions with 'real' factors instead of the conventional ones; (iii) creating incentives to speed up proceedings; (iv) a balanced approach to the appointment of arbitrators in international arbitration; and (v) performance evaluation of international arbitrators.
No Ones Credit Is As Good As Cash: Awards and Orders for the Payment of the ICC Advance on Costs
Authors: Greenberg Simon , Darwazeh Nadia
Published: March 2022

When a party agrees to arbitrate, it agrees to pay its share of the deposit on arbitration costs. In practice, however, parties sometimes refuse to pay or fail to participate in the arbitration at all. In such cases can the defaulting party be compelled to contribute towards the advance on costs? In recent years, there has been a significant increase in the number of applications for ICC arbitral tribunals to intervene and order the defaulting party to pay its share. This article explores the basis for and consequences of such applications following the review of 28 ICC arbitral awards and procedural orders rendered in the last ten years.
Waiver of Sovereign Immunity Clauses in Contracts
Authors: Sagar Samarth
Published: March 2022

An increasingly common problem for commercial entities that contract with states and state-controlled entities and seek to arbitrate disputes or execute on judgments and awards, occurs when states attempt to raise the defence of sovereign immunity to avoid the enforcement of the arbitral award. The most common panacea advised to counter the defence mentioned above, both in the realms of jurisdiction before the executing court as well as actual attachment of properties for the purposes of realizing the arbitral award, is a 'waiver of sovereign immunity' clause. This clause has lately come into the limelight due to the multifarious litigation in response to the Argentine Sovereign Debt Crisis and the problems faced by private parties in having their judgments/awards against the Argentine Republic enforced and executed in national courts of various jurisdictions. The recurrence of these incidents has necessitated an examination of the scope and effect of the 'waiver of sovereign immunity' clause as it stands today. A close scrutiny of the form, structure and legal basis of the 'waiver of sovereign immunity' clause clearly demonstrates that though practitioners have been astute enough to appreciate the gravity of the problem, their recommended panacea has fallen extremely short of its avowed purpose.
SPC Instruction Provides New Opportunities for International Arbitral Institutions to Expand into China
Authors: Sun Wei
Published: March 2022

Are foreign arbitral institutions allowed to hear cases seated in China? Scholars and practitioners have debated it heatedly for many years and no definite answer have been found in Chinese laws and regulations. A recently published instruction of the Supreme People's Court of the People's Republic of China (PRC) clarified this issue. This instruction could open up the Chinese arbitration market for established international players.
Challenging the Splitting the Baby Myth in International Arbitration
Authors: Weber Ana Carolina , Marques Ricardo Dalmaso , Pascuzzo S. Carmine A. , Pastore Guilherme de Siqueira
Published: March 2022

International arbitrators have been criticized for purportedly engaging in a practice of compromise when rendering decisions ("splitting the baby" or "triangulating"), instead of adjudicating claims in accordance with proven facts and applicable law. Despite having been considered a myth and an outdated discussion, this concern has been recently revisited with great interest, and is still described as an often-prevailing point of view among a number of international arbitration players. It is therefore relevant to determine the possible causes behind the perception that arbitrators tend to "split the baby", as well as to assess whether such causes justify its continuous reconsideration in the international arbitration community. This article aims to discuss the causes of the myth and, by relying on previous studies on the matter and on empirical data, determine whether the myth is after all justified.
International Commercial Arbitration in Iraq: Commercial Law Reform in the Face of Violence
Authors: Al-Sarraf Adam , Calamita N. Jansen
Published: March 2022

No one in Iraq underestimates the size of the challenges faced by a state still living with the trauma of thirty-five years of dictatorship, war, and ongoing sectarian violence. The establishment of peace and security within the country remains the essential task for Iraq's leadership and the key to Iraq's future. But even as Iraq struggles to reach a political settlement, which will allow lasting security to be achieved, developments continue to occur with respect to the commercial legal infrastructure of the state. Significant changes to Iraq's legal institutions have occurred since the end of U.S.-led occupation, and with those changes have come some real changes in Iraq's legal culture. There is much work yet to do for Iraq in order to establish the kind of legal system which will meet its aspirations and provide a solid environment for increased commerce, but as this article sets out, with respect to international commercial arbitration in particular, much already has been done to shake off at least some of the shackles of the past.
Tidewater v. Venezuela: Property Rights Capable of Expropriation in a Company Operating under Short-Term Contracts
Authors: Cueto José Ignacio García , Pagani Felipe Nazar
Published: March 2022

Despite operating for more than fifty years in the Venezuelan market, Tidewater Marine, C.A. (SEMARCA) did not have a permanent concession contract with Petróleos de Venezuela S.A. (PDVSA) or any of its subsidiaries. Instead, SEMARCA operated on the basis of short-term contracts that were periodically extended. This did not prevent an ICSID tribunal (hereinafter ‘the Tribunal’) from finding that SEMARCA was a going concern operating an open-ended business, which was expropriated by the Bolivarian Republic of Venezuela (hereinafter ‘Venezuela’ or ‘the Respondent’). The Tribunal awarded two Barbadian subsidiaries of Tidewater (hereinafter ‘the Claimants’) damages up to the amount of USD 46.4 million.

The main issues dealt with in the case are: (i) the existence of property rights capable of expropriation; (ii) the legality of an expropriation where proper compensation was not afforded to the investor at the time of the measures or shortly thereafter; (iii) whether outstanding accounts receivable should be included when valuing an expropriated company; and (iv) whether political risk should be considered when calculating the country risk premium.

The Award contained two critical holdings: (i) the fact that a company operates under short-term contracts does not impact whether property rights capable of expropriation exist; and (ii) a failure to pay prompt compensation and/or to offer compensation in a sufficient amount does not, on its own, render the expropriation unlawful.
The Effect of Insolvency on Pending International Arbitration: What Is and What Should Not Be
Authors: Draguiev Deyan
Published: March 2022

Situations in which the respondent in international arbitral proceedings is declared insolvent in its jurisdiction of incorporation while the arbitration is still pending are not uncommon. They raise a number of choice of law issues both in terms of substantive and procedural law. While the roots of arbitration lie in party autonomy, insolvency laws are often comprised of mandatory rules protecting the interests of different classes of stakeholders. This article attempts to devise an abstract model of the various choice of law and characterzation problems regarding the cross-border effect of the insolvency and provide reasoned options and solutions for the arbitral tribunal faced with the interaction between insolvency and pending arbitration proceedings. It is suggested that it is part of the arbitrators’ duty to render an enforceable award to consider cautiously the effects of insolvency, especially if there is a risk of a clash with the mandatory framework of insolvency either at the seat of the arbitration or the likely place of enforcement of the award. The arguments are tested against recent case law of various national courts having reviewed the conflicts between arbitration and insolvency.
Non-signatories, Groups of Companies and Groups of Contracts in Selected Asian Countries: A Case Law Analysis
Authors: Hanotiau Bernard
Published: March 2022

More than one-third of all international arbitration cases filed these recent years have involved issues of non-signatories, groups of companies or groups of contracts. The scenarios are diverse, but they frequently involve one of the following questions: is it possible to join and decide together in one arbitral procedure all the disputes which arise from the various contracts relating to the same project or to decide under the arbitration clause contained in one contract disputes arising under one or more related agreements; or in the context of a group of companies, whether one or more entities which belong to the group may be properly considered to be parties to the arbitration agreement even though they have not signed formally the contract containing the arbitration clause. The present article analyses published decisions rendered on these issues in selected Asian countries, namely, Singapore, Mainland China, Hong Kong, India, South Korea, Malaysia, and Japan.
Reinventing the Redfern
Authors: Harris Peter
Published: March 2022

The ‘Redfern Schedule’, a device used to organize requests for the production of documents in arbitration, was initially conceived as a way of limiting document production to the documents critical to each party’s case, and avoiding the costs and delays associated with discovery in common law jurisdictions. Despite these noble intentions, it is apparent that Redfern-governed document production is too often ending up like US-style discovery, and that thought needs to be given to how the Redfern Schedule might be modified to deal with this trend – the cost consequences of which are bad for parties and arbitration alike. To that end, the authors propose various ways through which parties can minimize the costs of document production through creative use of the Redfern Schedule, whilst retaining strategic imperatives and ensuring they do not alienate the Tribunal.
Recent Developments in International Arbitration in Ireland and the United Kingdom
Authors: Reilly Louise
Published: March 2022

This article will provide an overview of arbitration-related judgments rendered in 2015 by the courts of Ireland and the United Kingdom and consider whether they have adopted a supportive role to the arbitral process. There have been some interesting developments in both jurisdictions and the impact of these will be discussed.
Settling Disputes in the Nigerian Banking Sector: Why Not Arbitration?
Authors: Ifebunandu Joseph C.
Published: March 2022

In every economy, it is commonly accepted that the financial health and stability of its banking sector is a key indicator of that economy’s performance. As a result, the volume of banking transactions is bound to rise with increased economic activities. With increased foreign direct investment in Nigeria and the Central Bank of Nigeria (CBN) consolidation exercise of 2005, Nigerian banks have achieved increased transactional capacity within the past decade. A primary result of these increased economic and banking activities is a similar increase in disputes arising from banking transactions and activities, ranging from retail banking disputes to those arising from specialized products.

For all stakeholders in growing economies (particularly foreign investors), an effective and prompt mode of dispute resolution has a high impact on the sustainable growth of such economies. This article analyses the current dispute resolution trends in the Nigerian banking sector as well as key considerations for banks in using arbitration as a dispute resolution mechanism. It also assesses major challenges that banks may face, with likely mitigations. Finally, it discusses the need for the further development of arbitration as an effective option for resolving banking disputes in Nigeria.
Challenge Decisions at the Danish Institute of Arbitration
Authors: Pihlblad Steffen , Tufte-Kristensen Johan
Published: March 2022

Arbitral institutions make regular decisions on the required impartiality, independence and qualifications of arbitrators. The decisions and their underlying analyses are rarely available to the public. Therefore, the arbitration community is missing a valuable source of clarification and analysis, and a poor clarification and analysis may ultimately lead to untenable appointments and unfounded challenges.

The article and the following decision summaries explain how the Danish Institute of Arbitration approaches the challenge of arbitrators. The article is inspired by the arbitrator challenge digest published by the London Court of International Arbitration a few years ago, but the approach by the Danish Institute of Arbitration is unique in a number of ways.

The Institute’s approach reflects a delicate balance between efficiency, flexibility, party autonomy and due process. Based on the fifty-seven challenge decisions outlined below, the article explains how the Institute aims at finding the right balance in a number of different circumstances. The article thereby provides a tool for in-house attorneys, external counsel, arbitrators, institutional staff and other arbitration practitioners to make the right arguments and proper analyses when dealing with issues concerning the challenge of arbitrators.
UNCITRAL Model Law: Composition of the Arbitration Tribunal Re-considering the Case upon Setting Aside of the Original Arbitration Award
Authors: Kalisz Beata Gessel- Kalinowska Vel
Published: March 2022

In this article, the author analyses the question whether it is possible for the arbitrators, after their original award had been annulled, to sit on the arbitration tribunal hearing the case again, to reconsider the case, and to issue a second award in the same case in light of the UNCITRAL Model Law regulations. This question is addressed from two basic perspectives. The first one relates to arguments rooted in the functus officio principle, especially in reference to rectification and remission proceedings, as laid down in relevant regulations. The second perspective, meanwhile, encompasses the ethical principles and usages concerning appointment of arbitrators in international commercial arbitration, including the concept of prejudgment. In her conclusions, the author rejects a blanket prohibition on re-appointment of arbitrators, arguing that it does not duly account for all the nuances of the notion of impartiality in the context of actual practice.
Emergency Relief in Investment Treaty Arbitration: A Word of Caution
Authors: Osadchiy Maxim
Published: March 2022

Emergency interim relief – a procedure widely available in commercial arbitration – is now being put to use in investment treaty cases. Five documented cases of emergency interim relief in the investment treaty context are known today. The article discusses these cases and uses them as a basis for assessing some of the issues that are likely to arise with the application of emergency interim relief in future investment treaty cases. The article argues that emergency interim relief in its current form, an instrument developed with commercial arbitration in mind, may not be entirely suitable for investment treaty arbitration, due to the unique features of the latter. While acknowledging the utility of emergency interim relief in investment treaty arbitration, the article suggests that the existing rules regarding emergency interim relief and the treatment of emergency relief applications by emergency arbitrators could be changed to adequately take into account challenges unique to investment treaty arbitration.
A Statement of Arbitral Jurisprudence: The Case for a National Law Obligation to Publish International Commercial Arbitral Awards
Authors: Comrie-Thomson Paul
Published: March 2022

The confidentiality attaching to arbitral proceedings and awards remains of uncertain scope globally and is a matter of continuing debate. The weight of opinion appears, however, to be shifting in favour of greater transparency. As part of this trend, a number of scholars and commentators have made a strong case for the sanitized publication of arbitral awards by arbitral institutions. This article goes a step further and makes the case for a national law obligation to publish awards. It does so on the basis that there are significant public interests in the making available of certain information contained within arbitral awards which arbitral institutions have little or no incentive to provide. The article proposes a ‘statement of arbitral jurisprudence’ – an annual publication by a state of the purely legal elements of decisions of arbitral tribunals seated in that state – as an appropriate mechanism. The statement of arbitral jurisprudence would achieve a careful balance in facilitating access to information that meets these public interests without discouraging the use of arbitration.
The Time for a New Arbitration Law in China: Comparing the Arbitration Law in China with the UNCITRAL Model Law
Authors: Teh Stephanie , Ribeiro João
Published: March 2022

As China consolidates its position as one of the most important trade players in the international market, arbitration has become an attractive alternative to litigation in commercial disputes between Chinese companies and their foreign trade partners. The UNCITRAL Model Law on International Commercial Arbitration 1985, with amendments as adopted in 2006, represents the accepted international legislative standard for a modern arbitration law. In order to make China an attractive seat for international commercial arbitration and enhance the efficiency of the arbitration system for the benefit of commercial parties, whether Chinese or foreign, it is important for China to consider adopting the UNCITRAL Model Law. This article provides an overview of the UNCITRAL Model Law and its positive impact on the development of arbitration in several jurisdictions worldwide. Next, the benefits of legal reform are highlighted through a contrast between China’s current Arbitration Law and the UNCITRAL Model Law. Finally, this article lays out a procedural roadmap through which China’s legal framework may be amended to incorporate the UNCITRAL Model Law.
Korean Arbitration Act Amended to Adopt Key Features of 2006 Model Law Amendments
Authors: MacArthur David , Bang John
Published: March 2022

South Korea has amended its national arbitration law, effective as of 30 November 2016. Many of the changes are adopted or adapted from the 2006 Model Law Amendments, while others clarify, simplify, or improve on the prior status quo. The amendments include, among other changes: establishing the enforceability of interim awards, relaxing the ‘writing’ requirement for valid arbitration agreements, improving the procedures for court-assisted evidence-taking, and revising the definition of ‘arbitration’ to expand the scope of arbitral disputes.
Court-Ordered Interim Relief Against States in Aid of Arbitration: Sovereign Immunity, Waiver and Comity
Authors: Goh Nelson
Published: March 2022

States and state entities are increasingly involved in commercial arbitration. Despite the fairly settled principles concerning state immunity from adjudication and state immunity from execution, the principles concerning state immunity from interim relief by domestic courts in aid of arbitration remains poorly defined. Adopting Professor McLachlan’s approach toward foreign relations law, this article attempts to sketch the principles which may govern state immunity in the context of interim relief against states in aid of arbitration by applying the rules of state immunity in an allocative manner. It is suggested that it is at least arguable that a state’s consent to arbitration in many cases could amount to a waiver of state immunity from court-aided interim relief by the court located at the seat of the arbitration. This conclusion is likely to strike a balance between over-deference to states by virtue of their sovereign status, and a liberal erosion of the immunity rules in favour of private counterparties.
Think Quality Not Quantity: Repeat Appointments and Arbitrator Challenges
Authors: Koh Will Sheng Wilson
Published: March 2022

Repeat appointments of an arbitrator by the same counsel or party are not uncommon in arbitration, with some even claiming that an ‘inner mafia’ decide the majority of cases. Whether this poses a problem for arbitrator independence or impartiality has been described as ‘highly controversial’. The 2014 IBA Guidelines on Conflicts of Interest expressly identifies repeat appointments as an Orange List circumstance providing possible grounds for challenge, but this has been described by commentators such as Gary Born as ‘poorly-considered’ and ‘relatively extreme’.

This article suggests that reports of systemic favouritism have been exaggerated and numerical limits on repeat appointments should be rejected. I begin by outlining in section 2 the two contrasting approaches that authorities faced with such challenges have adopted: a quantitative approach and a qualitative approach. Section 3 examines the legal standards that parties typically subscribe to and argues that they cannot and should not be interpreted to favour the quantitative approach. Section 4 scrutinizes the main reasoning processes that allegedly link repeat appointments to an appearance of bias and suggests that they rely on untenable generalizations. Finally, section 5 assesses the quantitative approach from its impact on party autonomy. I suggest that respecting party autonomy means that the quantitative approach must not be adopted except where parties have explicitly agreed so.
Specific Performance Under Commercial Contracts with Sovereign States
Authors: Triantafilou Epaminontas E. , Sinclair Anthony C.
Published: March 2022

Awarding specific performance against a state is widely considered an affront to principles of sovereignty and non-interference. Even when permitted under the applicable law and arbitral rules, specific performance against a state may therefore be considered not to be appropriate or desirable. The scarcity of specific performance awards against states is thus likely attributable to practical and policy-based considerations as much as legal principle. Exploring its use as a remedy when a sovereign state breaches a commercial contract, this article recognizes the need for tribunals to exercise caution when entertaining pleas for non-pecuniary relief. To give effect to specific performance without encroaching on sovereignty, and while catering for the economic and practical realities of broken contractual relationships, the authors discuss a hybrid approach. This proposal allows tribunals to award specific performance and monetary compensation as alternatives, while affording the ultimate decision to the state.
A Second (Quasi-Perfect?) Storm also in Arbitration?
Authors: Rubino-Sammartano Mauro
Published: March 2022

Many users of international arbitration, particularly in-house counsel, have repeatedly expressed concern about the lack of adequate information on arbitrators, resulting in arbitrator selection based on a vague and general reputation often informed by word of mouth or anecdotal information. Arbitral institutions and arbitration circles cannot remain indifferent to this need. A first step to deal with this issue is the disclosure by arbitrators of the information contained in the arbitrator ’ s pledge launched by the European Court of Arbitration; another step is the issuance of an official acknowledgement as a ‘ certified arbitrator ’ by arbitral institutions, and eventually the requirement that certified arbitrators abide by a universal code of ethics.
Blue Bank International v. Venezuela: When Are Trust Assets Protected under International Investment Agreements?
Authors: Wehland Hanno
Published: March 2022

The award rendered by a tribunal in proceedings conducted under the auspices of the International Centre for Settlement of Investment Disputes (ICSID) between Blue Bank International and Venezuela in April this year is the first public decision addressing in detail the question of whether trustees can be considered protected investors with regard to trust assets under International Investment Agreements. This article analyses the findings of the Blue Bank tribunal with a view to more generally identifying requirements for the protection of trust assets under investment treaties. Based on a review of the relevant treaty provisions and the jurisprudence of arbitral tribunals it concludes that, in the absence of beneficial ownership, trustees will typically not be protected. By contrast, trust assets can be protected either where a treaty admits trusts themselves as investors or where the rights of beneficiaries are specific enough to amount to beneficial ownership.
Summary Disposal in Arbitration: Still Fair or Agreed to be Fair
Authors: Dharmananda Kanaga , Ryan David
Published: March 2022

Parties may well opt for arbitration as a dispute resolution method because it is fast, flexible, and allows for rapid disposition. Where attempts are made for summary disposition, the traditional view was to resist such processes for fear of offending the fair hearing rule. Close attention to the question, and to recent developments in institutional rules, and the treatment of challenges based on procedural fairness grounds, reveals a picture that is more nuanced than the traditional view. Together with a consideration of waiver provisions, this article considers summary disposition in the face of the requirement for procedural fairness.
Comparative Analysis of Joinder and Consolidation Provisions Under Leading Arbitral Rules
Authors: Smith Gordon
Published: March 2022

A number of leading arbitral institutions, recognizing the significant benefits of joinder and consolidation provisions, and reflecting parties’ demand, have recently amended their arbitral rules either to include joinder and/or consolidation provisions for the first time, or enhance the scope of their existing provisions. The author discusses in this article the benefits of joinder and consolidation, the mechanisms available to parties in international arbitration for joinder and consolidation, the joinder and consolidation provisions contained in leading arbitral rules, and assesses the key similarities and differences among the rules.
The Direct Involvement of the Arbitrator in the Amicable Settlement of the Dispute: Offering Preliminary Views, Discussing Settlement Options, Suggesting Solutions, Caucusing
Authors: Berger Klaus Peter
Published: March 2022

This article explores the question whether and to what extent international arbitrators should become directly involved in the parties’ efforts towards an amicable settlement of their dispute. It demonstrates that the controversy over the international arbitrator’s role in the facilitation of settlements is just one example of a wider and long-standing debate on the proper role of a tribunal in international arbitral proceedings. The article favours a pragmatic approach based on party autonomy as the foundation of arbitration. The parties may very well agree to expand the tribunal’s mandate so that the arbitrators may also act as conflict resolvers by facilitating a settlement of the parties’ dispute. However, arbitrators may never impose their preliminary views on the parties or employ any other means to promote an amicable settlement against their will.
Mexican Punitive Damages in Commercial Arbitration: Forecasting the Future
Authors: Muñoz Edgardo
Published: March 2022

In February 2014, the Supreme Court of Mexico, citing US scholarship and case law, held that punitive damages had to be awarded to a tort plaintiff as part of the indemnity afforded by Mexican law under the heading of moral damages (daños morales). Before this landmark decision, nothing similar to punitive damages existed in the Mexican legal system. In the context of arbitral proceedings, this new interpretation of moral damages gives rise to two questions at the core of the international discussion on punitive damages and arbitration. The first has regard to the power of arbitral tribunals with seat in Mexico to award punitive relief when the applicable substantive law, including Mexican law, contemplates it. The second is the possibility of enforcing foreign-based law punitive damages awards in Mexico. Despite the early stage and still incipient discussion regarding the true nature and application of punitive damages in Mexico, the author forecasts that, while they may be an available relief in arbitration proceedings in Mexico, this decision is a rare exception and their quantum limited. In addition, Anglo-American law based punitive damages awards may still find a public policy obstacle for their enforcement or grounds for their nullity in Mexico.
In Claimants Hands? Admissibility and Consequences of a Withdrawal of Claim in International Arbitration
Authors: Keilmann Annette , Haller Heiko A.
Published: March 2022

The withdrawal of claim is not explicitly dealt with in most arbitral rules. As a consequence, it can be unclear whether a withdrawal is without prejudice or with prejudice (i.e. a ‘waiver’ of the claims). Also, it is questionable whether, in case of a withdrawal with prejudice, the respondent is entitled to object to a withdrawal. Finally, there may be doubt whether a cost decision has to be taken and who decides on the allocation of the costs when a claim is withdrawn. This article concludes that – unless the claimant clarifies that its withdrawal is one with prejudice – the withdrawal is only without prejudice. The respondent may object to such withdrawal. From the moment when the respondent has received the detailed request for arbitration or the statement of claim, even the respondent’s consent is required. Regarding a withdrawal with prejudice, no consent of the respondent is needed. Finally, although any effective withdrawal of a claim terminates the arbitration proceedings with immediate effect, the arbitral tribunal remains competent to decide on the allocation of the costs of the proceedings.
Deferred Challenges to Jurisdiction Under the Model Law
Authors: Pereira Shaun
Published: March 2022

This note discusses a recent decision of the Singapore High Court, which decided that a party’s failure to bring a challenge against an arbitral tribunal’s preliminary ruling on jurisdiction under Article 16 of the UNCITRAL Model Law precluded that party from applying to set aside the merits award on the jurisdictional grounds which could have been challenged earlier. This note argues that a better interpretation of the Model Law is that parties are entitled to choose between the two alternatives of a challenge under Article 16 or a subsequent setting-aside application on those jurisdictional grounds. That interpretation is more consistent with the drafting history of the Model Law and makes good practical sense, and any undesirable conduct can be adequately regulated through the cognate doctrines of waiver and estoppels.
How Can Arbitrators Best Protect Their Deliberations from Disclosure: New Challenges and Opportunities in England
Authors: Turner David , Hooker William , Allen Prince Nathalie
Published: March 2022

A 2017 decision in the English High Court, together with a 2017 decision of the UK Information Commissioner, have left open the possibility that arbitrators may be compelled to disclose their deliberations, communications and working papers to the parties in certain circumstances. Whilst such circumstances are likely to be rare, it remains uncertain precisely when arbitrators are entitled to withhold such documents, and when disclosure will be required. It will require further litigation or new statutory developments to establish the precise boundaries of confidentiality and what circumstances, if any, will justify an order for disclosure. This article argues that the best path to clarity would be through recognition of a category of legal professional privilege that attaches to documents prepared by arbitrators for the sole or dominant purpose of their conduct of the arbitration. It explains that while such a category of privilege ought to be capable of being established via the common law, it may be appropriate for necessary changes to be reflected in any forthcoming amendment to arbitral law in England.
Australias Bilateral Investment Treaties: A Laid-Back Approach to Consent?
Authors: Dinshaw Freya , Martignoni Andrea , Holland Christopher
Published: March 2022

This article considers the requirement in a number of Australian investment treaties that a host state, following the referral of a dispute to arbitration before the International Centre for the Settlement of Investment Disputes, provide written consent to arbitration. The uncertainty around the practical operation of such provisions is problematic. It remains to be seen how International Centre for the Settlement of Investment Disputes (ICSID) tribunals will address this requirement as Australian investors become more engaged with investor-state arbitration. One would hope that a more ‘laid back’ approach to consent prevails.