bluuebunny/crossref_metadata_2025 huggingface dataset:
Thomas v. Carnival Corporation: Has the Eleventh Circuit Set International Arbitration Off Course?
Authors: Stein Erica
Published: March 2022

The United States has long been regarded as a jurisdiction favorable to international arbitration. However, a recent decision of the Eleventh Circuit Court of Appeals may call this into question. This article analyzes the court’s decision with a view towards understanding its potential impact on international arbitration in the United States, in particular with respect to the enforceability of international arbitration clauses.
Validity of the “Beijing Arbitration” Clause — A Discussion of Two Landmark Civil Rulings of the Chinese Supreme People’s Court
Authors: Xianwei Peng
Published: March 2022

Under Chinese arbitration law, there exists a special requirement that for an arbitration clause to be valid, the arbitration institute must be designated. This article analyses the reasons for this requirement and in particular, considers two civil rulings delivered by the Chinese Supreme People’s Court in 2009 invalidating clauses which simply provide for “Beijing Arbitration.”
International Arbitration in a Global Economy: The Challenges of the Future
Authors: Hanotiau Bernard
Published: March 2022

The forces of globalization have generated an increased number of international contracts, which in turn have resulted in an enormous increase in complex commercial disputes. These forces have fueled the development of international arbitration as the preferred choice of businessmen for the resolution of their disputes. They have further led to a denationalization of arbitration, both procedurally and substantively, as well as to a convergence of national legislation and institutional rules, based on a consensus on a greater liberalization of the process.

The forces of globalization have also opened the door to the application by arbitral tribunals of general principles of international commercial law, common to all nations, and have contributed to the development of an international arbitration culture.

Beyond its success, international arbitration is facing today many challenges. There is an increased concern over its judicialization, its time and cost efficiency, and various ethical issues. What can be done to overcome these challenges, and make sure that arbitration will continue to offer the qualities and advantages that have been the keys to its success?
Costs Awards in Arbitration
Authors: Rubino-Sammartano Mauro
Published: March 2022

The arbitral tribunal deals with costs after deciding the jurisdictional and preliminary issues and after dealing with the merits of the dispute, which may involve going through thick files of documents.

In other words, dealing with costs takes place after the making of an effort which may occasionally exhaust the energies of the arbitral tribunal. This may be accompanied by a tendency to consider costs as a minor and non-intellectually stimulating issue.

The result of this combined approach may be that the arbitral tribunal does not devote to the costs award the time and attention which is required in circumstances where one party is not fully awarded its claim and the other party does not entirely fail.
Nurdin Jivraj v. Sadruddin Hashwani: The English Court of Appeal Erects a Regulatory Barrier to Appointment of Arbitrators in the Name of Anti-Discrimination
Authors: Yang Inae
Published: March 2022

In Nurdin Jivraj v. Sadruddin Hashwani, the English Court of Appeal reversed the decision of the English High Court, which had held that arbitrators are not employees within the Employment Equality (Religion or Belief ) Regulations 2003 (S.I. 2003/1660), and held that arbitrators are employees for the purposes of the Regulations. The English Court of Appeal found that an arbitration agreement stipulating that all the arbitrators should be members of the Ismaili community was unlawful and void because such restrictions were contrary to regulation 6(1), which prohibits discrimination on the grounds of religion or belief in relation to employment. This decision has the potential to restrict the power of parties over the composition of the arbitral tribunal, thereby limiting party autonomy, one of the fundamental principles of international arbitration.
The New AFA Arbitration Rules
Authors: Kühner Detlev
Published: March 2022

As of January 1, 2011, arbitration users can benefit from a revised version of the AFA Rules of Arbitration. The Rules have been entirely restructured and appear to be more user-friendly. The new Rules are in line with the new French Arbitration Decree and contain a series of useful modifications, accompanied by an enhancement of the role of the Arbitration Committee.
A Proposed Model Procedural Order on Confidentiality in International Arbitration: A Comprehensive and SelfGoverning Code
Authors: Thio Nicholas , Hwang Michael
Published: March 2022

The obligation of confidentiality and the scope of its exceptions is one of the intractable problems in international arbitration because there is no uniformity of practice among national laws and also the rules of arbitral institutions. The problem with the latter is also that, although many institutional rules provide for the confidentiality of the proceedings, virtually all have framed the exceptions to confidentiality in absolute terms, with no referee to decide when a particular exception applies or when a new exception ought to be created. The centrepiece of this article is a Model Procedural Order on confidentiality which is designed as a framework to address, among other things, that defect. Based on a survey of the rules of the various arbitral institutions, it also sets out in a practical manner the various situations in which an exception to confidentiality may need to be invoked, thus making it suitable for implementation as a customizable solution to confidentiality (since the Model Procedural Order is in the form of a template which may be tailored to meet the particular requirements of the case) in either ad hoc arbitrations or where the provisions on confidentiality contained within the rules of the arbitral institution are replaced wholesale. The Model Procedural Order raises important legal issues associated with its implementation for consideration - these include questions going to the jurisdiction of the arbitral tribunal to make procedural directions directing the preservation of confidentiality upon terms, whether parties continue to be bound by the arbitral tribunal's directions on confidentiality even after the termination of the arbitration and the limit of the powers of the arbitral tribunal to sanction breaches of confidentiality. These and other concerns are addressed below.
The General Principles of Islamic Law as the Law Governing Investment Disputes in the Middle East
Authors: Badawy Tarek
Published: March 2022

The recent collapse of certain Arab regimes and the subsequent rise to power of Islamic parties that call for the general application of Islamic law (sharia) will certainly generate debates about the compatibility of sharia with modern principles of justice. The uncertainty surrounding the seriousness of these politicians' calls and the general lack of knowledge about sharia among western lawyers and investors increase the worries of foreign companies regarding their projects in the Middle East. This article provides its readers with information about the principles of contract law under sharia, and demonstrates how investors who are forced to accept sharia as the law governing their disputes - either in the context of an international arbitration or a regular state court - will likely receive equal, if not more, protection than the safeguards offered by international law.

The article starts by demonstrating how the sources of Islamic law sanction arbitration. It further explores some of the unique rules of contract law under sharia (e.g., lack of procedural formalities, and the negation of state immunity), that give certain privileges to foreign investors. Such particular rules allow investors to resort to legal tricks - known as hiyal - to circumvent certain prohibitions pertaining to the charging of interest. The article's main conclusion is that should the principles of sharia be properly applied to investment disputes in the Middle East, foreign investors will likely receive more protection against abusive nationalization than they would under international law. Having said that, the possible application of Islamic law to state contracts remains uncertain at this stage, albeit not unlikely.
The 2012 ICC Rules of Arbitration  An Accelerated Procedure and Substantial Changes
Authors: Goller Karin Calvo
Published: March 2022

The 2012 International Chamber of Commerce (ICC) Rules of Arbitration pave the way for more expeditious arbitral proceedings since under the added requirements, the parties are to provide more extensive information during the initial stages of the proceedings. The delays caused by further submissions are thereby avoided. A wider approach towards the case, may enable the joinder of additional parties, to address claims between multiple parties and multiple contracts ab initio, and to consolidate arbitration proceedings. The new Rules establish an emergency arbitrator procedure for urgent interim or conservatory measures, as well as case management techniques to reduce the costs.

The work of the members of the ICC Commission of Arbitration, the ICC National Committees, the International Court of the Arbitration, the representatives of the National Committees, and selected counsels and arbitrators, over a two-year period bore results: in June 2011 in Mexico City, a revised version of the 1998 ICC Rules of Arbitration was adopted by The World Council of the ICC (hereinafter 'the 2012 ICC Rules' and/or 'the new Rules').
In Memory of Professor Dr Iván Szász
Authors: Kecskés László
Published: March 2022

The very sad apropos of the present article is the untimely death of Professor Dr Iván Szász, the best-known Hungarian arbitrator in the family of international commercial arbitration, at the beginning of this year. There are many arbitrator colleagues throughout the world who knew him from international arbitrations and conferences, and admitted his talent and exceptional skills both as a practitioner arbitrator and as the leading official of the International Council for Commercial Arbitration ICCA over many years. This article aims to pay tribute to him whose passing is a great loss not only to the Hungarian but also to international arbitration and arbitrators.
White Industries Australia Ltd. v. Republic of India: A New Lesson for India
Authors: Ray Ashutosh
Published: March 2022

The Indian arbitration landscape is set for a completely new twist in the wake of the first investment arbitration award rendered against India. The decision was rendered in the matter between White Industries Australia Ltd. and the Republic of India in an United Nations Commission on International Trade Law (UNCITRAL) arbitration. This article examines the case, observes the questions which were considered by the tribunal, and discusses the rationale of the tribunal in arriving at its decision. Apart from an analysis of the case, the article also discusses its ripple effect which has already set in.
The New Arbitration Law and its Impact on Investment in Saudi Arabia
Authors: Alnowaiser Khalid
Published: March 2022

The new law of arbitration, which should promote investment flow in Saudi Arabia, will not only affect Saudi investors but also non-Saudi investors alike, since arbitration appears to be the most viable option of most contracts being used in the Kingdom. The new law adopts both local and international terms as well, as long as those terms do not conflict with the Shariah Law. The Shariah law in association to Islam is at times perceived as this mysterious and strange law, while in fact it merely promotes the attainment of justice like any other international law.
The Inconvenience of Principle: Separability and Kompetenz-Kompetenz
Authors: Landolt Phillip
Published: March 2022

The principles of separability and Kompetenz-Kompetenz were developed to favour the effectiveness of arbitration as a means of dispute settlement. This article seeks to demonstrate that in the modern day the beneficial effects of these principles have been ordained in statute in most arbitration law systems, but frequently such statutes also maintain reference to their being principles. It is contended in the article that the persistence of such principles is the source of multiple inconvenience. The article recommends that reference to the two principles as principles be excised from statute, and those of these principles' effects which are beneficial to arbitration be prescribed without more.
The Appeal of Appeal Mechanisms in International Arbitration: Fairness over Finality?
Authors: Platt Rowan
Published: March 2022

One of the main reasons why parties choose arbitration is the principle of finality, that international arbitral awards cannot be appealed on the merits. While the vast majority of national arbitration legislation and the rules of major arbitral institutions provide for the finality of arbitral awards, there are some exceptions to the rule. This article seeks to review the various appeal mechanisms that exist in international arbitration and to assess, both theoretically and practically, their impact on the principle of finality. It begins by examining the right of appeal to the courts on a question of law under section 69 of the English Arbitration Act 1996. It then explores the emerging trend amongst some international arbitration service providers to amend their rules to provide internal appeal mechanisms in their arbitral procedure, reflecting the perceived need by some users for an alternative to the strict finality provided for in the rules of major institutions. Outside the realm of international commercial arbitration, the International Centre for the Settlement of Investment Disputes (ICSID) annulment regime and the Appeals Division of the Court of Arbitration for Sport (CAS) both provide internal review structures but with contrasting approaches to the finality of awards. It appears that the attraction of any appeal mechanism lies in the way it balances the competing notions of fairness and finality. Ultimately, the author argues that, consistent with party autonomy, appeal mechanisms should not be considered controversial as long as the parties agree on the procedure of any such appeal. Where parties agree to prioritize correctness or fairness over finality, this does not necessarily detract from the principle of finality, but rather conforms with the spirit of arbitration.
Inconsistent Awards in Investment Treaty Arbitration: Is an Appeals Court Needed?
Authors: Englesson Oscar , Nilsson Anders
Published: March 2022

One of the core issues of investment law is the protection of foreign investors against expropriation. In the past decade, an enormous development of this field of international law has taken place. Indeed, investment treaties have proliferated to an unprecedented degree, having surged from less than 400 in 1989 to well over 2,500 bilateral, regional and sectorial treaties today. The volume of investor-state arbitrations under these treaties has risen within the last decade to well over 200, with new arbitrations being initiated on an almost daily basis. Considering the great volume of investment treaty arbitrations, the question arises as to whether arbitral tribunals are consistent in their decisions, especially in regard to the concept of indirect expropriation, the central issue for most investment treaty arbitrations. Does a stare decisis principle exist in investment treaty arbitration? What weight should arbitrators give to decisions previously rendered by other arbitral tribunals? Do we need consistency? Does the nature of the system contribute to a fragmentation of investment law and is fragmentation a serious threat to the rule of international law or not? This article aims to discuss these issues and the related question of what the possible solution to the potential fragmentation problem might be. Some scholars have gone so far as to advocate the creation of a standing appeals court or tribunal to deal with challenges to investment awards. What are the benefits and drawbacks of such a proposal?
New Belgian Arbitration Law of 24 June 2013 and New CEPANI Arbitration Rules of 1 January 2013
Authors: Verbist Herman
Published: March 2022

The new Belgian arbitration law of 24 June 2013 provides a modern framework for arbitration based on the UNCITRAL Model Law on International Commercial Arbitration. It is applicable to both national and international arbitration. The new Belgian arbitration law replaces the previous arbitration law which was introduced in 1972 and amended in 1985 and 1998.The new law provides broader criteria for arbitrability, increases party autonomy and the efficiency of arbitration, provides new provisions on provisional and conservatory measures, and sets fundamental principles for the conduct of arbitration proceedings. The arbitration law no longer allows an appeals procedure against the decision taken by the Belgian courts on a claim for annulment of an arbitral award, while permitting only an application for 'cassation' to the Supreme Court against the decision. Foreign parties continue to have the possibility to explicitly exclude claims for annulment of arbitral awards.

On 1 January 2013, new Rules of Arbitration of CEPANI (the Belgian Centre for Arbitration and Mediation) entered into force, replacing the previous Rules of 2005.The 2013 CEPANI Rules introduce a number of new provisions concerning multiparty arbitration and also provide for the possibility of an 'emergency arbitration' prior to the constitution of the arbitral tribunal.

This article examines the important changes made to the Belgian Arbitration Law (Part 1) and to the CEPANI Arbitration Rules (Part 2).
The Protection of Investors Legitimate Expectations and the Fair and Equitable Treatment Standard under NAFTA Article
Authors: Dumberry Patrick
Published: March 2022

For the majority of NAFTA tribunals, the host state's failure to respect an investor's legitimate expectations does not constitute a breach of the fair and equitable treatment standard under Article 1105, but is rather a 'factor' to be taken into account when assessing whether or not other well-established elements of the standard have been breached. Tribunals have also repeatedly narrowly qualified the concept of legitimate expectations by requiring, for instance, that the investor's expectations be based on specific commitments made by the host state to have purposely induced its investment and denying that such expectations can be solely based on the host state's existing domestic legislation at the time of the investment.
The Jerusalem Arbitration Centre: From Tradition to Innovation
Authors: Darwazeh Nadia
Published: March 2022

The Jerusalem Arbitration Center, backed by the International Chamber of Commerce (ICC) was launched on 18 November 2013 after several years of reflection and hard work.Why was there a need to create this new arbitration center? The total annual volume of trade between Israelis and Palestinians is currently estimated at between USD 4 and 5 billion. However, there is significant potential for more trade in the region. To bolster economic integration, it was essential to create a neutral and efficient forum for dispute resolution. For business people on both sides who worked together on the project, as well as the ICC, the underlying idea for the project is in line with that developed by the French philosopher Montesquieu, namely that the development of trade leads to peace. The cornerstones for the development of the Center are neutrality, efficiency, and modernity. As a result, the JAC has emerged as a unique institution that is classical yet avant-garde.
Enforcing Arbitrators Obligations: Rethinking International Commercial Arbitrators Liability
Authors: Alessi Dario
Published: March 2022

Liability of arbitrators touches the heart of the concept of arbitration as it affects the legal relationship between the arbitrators and the parties and concerns some essential issues on the nature of the arbitrator's mandate.

This article intends to propose an alternative conceptual approach to the immunity-based theories, endorsing the suggestion that the arbitrator shall be liable as any normal intellectual service provider for breach of her obligations. Regarding the regime of liability, a systematization is proposed whereby strict liability, fault-based liability and tortious liability cohabitate. This relationship is argued being contractual. The existence of an objective contractual exchange underlies contractual liability for breach. As a consequence, the thesis proposed in this article is that the arbitrator shall be liable for breaches of the obligations contractually incurred. These contractual obligations can be divided into two main clusters, namely, the obligation to decide the dispute submitted and the obligation to provide a fair and equal adjudication. Thus, a dual regime of contractual liability for arbitrators is proposed. A separate set of obligations is represented by the pre-contractual duties of disclosure, which are tort-based. The plain existence of a contractual relationship between the arbitrator and the parties automatically sets aside all those theories claiming that because of the status or for some policy argument, the arbitrator must be immune from liability. As a consequence, any immunity or qualified immunity-based theory is rebutted in favor of a full liability-based conceptual scheme.
The Law Applicable to Privilege Claims in International Arbitration
Authors: Kuitkowski Diana
Published: March 2022

Privilege issues often arise in international arbitration. Privilege determinations are of considerable importance as they have an impact on the availability and admissibility of evidence. However, substantial uncertainty exists regarding the law applicable to privilege claims in international arbitration. This article examines the legal issues relating to privilege claims in international arbitration. It also examines in detail what arbitrators should do when faced with privilege claims and the various methods which have been developed by tribunals to deal with difficult privilege issues. The article advocates the development of privilege guidelines, which will ensure greater certainty in this area, while preserving the flexibility of the arbitral process.
No Sanctions Is Not a Deterrent against Production of Useless Documents
Authors: Rubino-Sammartano Mauro
Published: March 2022

The existence of a right to a full discovery which has become a practice in several jurisdictions, is seen by its opponents as a paper invasion.

As arbitration scholars and practitioners well know, a lively debate has been going on about the discovery of documents.
Third-Party Funding in International Commercial Arbitration and Arbitrator Conflict of Interest
Authors: Osmanoglu Burcu
Published: March 2022

Third-party funding in international commercial arbitration is one of the most current and controversial issues in international arbitration. Third-party funding is the system whereby a third-party funder finances, partly or fully, one of the parties' arbitration costs. In case of a favourable award, the third-party funder is generally remunerated by a previously agreed percentage of the amount of the award. In case of an unfavourable award, the funder's investment is lost. One of the numerous issues raised by the involvement of third-party funders in international commercial arbitration proceedings is arbitrator conflict of interest due to nondisclosure of the involvement of the third-party funder in the process. In this article, we first explain the concept of 'third-party funding in international commercial arbitration.' Then we examine arbitrator conflict of interest implicating third-party funders. Finally, we discuss the need to create an obligation to disclose the involvement of third-party funders in arbitral proceedings as a predicate for arbitrator conflict of interest.
EU Law in International Arbitration: Referrals to the European Court of Justice
Authors: Basedow Jürgen
Published: March 2022

While the courts of Member States are enabled or even required to submit preliminary questions concerning the interpretation of EU law to the Court of Justice of the European Union such referrals have traditionally been held inadmissible where made by arbitration panels. The article highlights a gradual softening of the Court of Justice’s position on this matter which would allow arbitral tribunals in investment protection proceedings to address the Court of Justice already at present. It further outlines some fundamental changes in the overall environment of commercial arbitration which should lead to a reversal of the Court’s position also in this field.
A Response to the Criticism against ISDS by EFILA
Authors: Willinski Piotr , Alvarez Gloria Maria , Blasikiewicz Blazej , van Hoolwerff Tabe , Koutouzi Keoplatra , Mitsi Mary , Spiteri-Gonzi Emma , Mena Adrian Verdegay
Published: March 2022

This article analyzes the validity of some of the most often-heard criticism against ISDS. It concludes that most of that criticism is neither supported by statistical evidence nor by the practice of international arbitration law. Consequently, this article cautions against the current hyper-activism to reform or even to dismantle some of the salient features of investor-state dispute settlement (ISDS), and instead, calls for a rational and balanced debate based on facts with a view to improving the ISDS system where necessary in an orderly fashion.
The Combined Use of Mediation and Arbitration in Commercial Dispute Resolution: Results from an International Study
Authors: Nigmatullina Dilyara
Published: March 2022

In a changing international commercial dispute resolution landscape, the combined use of mediation and arbitration has emerged as a dispute resolution approach offering parties a number of benefits. These include resolving parties’ disputes cost-effectively and quickly and obtaining a binding and internationally enforceable decision. However, to date there has been little agreement on several aspects of the combined use of processes. The academic debate is ongoing about acceptable ways of combining mediation and arbitration. At the same time, there is little evidence to suggest that practitioners actually use a combination of mediation and arbitration. This article analyses the results of a recent empirical study of the current use of mediation in combination with arbitration in international commercial dispute resolution. The results reveal that the combined approach is used to a relatively low extent, which contrasts with widespread recognition of the benefits that it seems to offer. In vast majority of cases, the mediation and arbitration stages are conducted by different neutrals, while the mediation stage usually involves the use of caucuses. Surprisingly, as appears from the study, the absence of a unified enforcement mechanism for international mediated settlement agreements does not present any obstacle to recording the outcome of the combined use of processes in a mediated settlement agreement rather than in an arbitral award.
Third Party Funding in International Arbitration: A Slippery Slope or Levelling the Playing Field?
Authors: Yeoh Derric
Published: March 2022

Common law jurisdictions have traditionally been averse to the notion of third party funding (‘TPF’) due to the ancient doctrines of champerty and maintenance. Founded on considerations of public policy, the laws of champerty and maintenance were targeted at frivolous and vexatious claims ‘fomented and sustained by unscrupulous men of power’. While common law jurisdictions such as the United Kingdom and Australia have removed prohibitions on TPF in arbitration, other common law jurisdictions are less eager to follow suit. In this article, the author argues that TPF in international arbitration should not be prohibited, but regulated, as it levels the playing field for claimants who are either impecunious or unable to bear the associated financial risks due to their limited financial resources. It examines the various arguments presented against TPF, such as the encouragement of frivolous claims, the control of the claim and conflict of interests, while also proposing various measures to curtail the risks of a slippery slope from TPF.
Appellate Arbitral Rules in International Commercial Arbitration
Authors: Carreteiro Mateus Aimoré
Published: March 2022

Arbitral proceedings are praised for the finality of their arbitral awards. One cannot ignore, however, that parties to complex and high-stakes disputes may be concerned about potential errors. In certain disputes, therefore, an internal appellate tribunal may be an interesting option for effective review of awards. After reviewing the role of appeals in litigation, this article analyzes the reasons in favor of appeals in international commercial arbitration and reviews how arbitral institutions have structured appellate arbitral rules and other potential issues that may arise. In conclusion, this article suggests that appeals, in the context of certain international commercial arbitrations, may improve the arbitration system and be crucial instruments to protect parties against erroneous decisions and to safeguard the integrity of the arbitration process.
Statoil v. NNPC: A Question of Absence of Jurisdiction or Exercise of Discretion Not to Exercise Jurisdiction
Authors: Odinkonigbo Jirinwayo Jude
Published: March 2022

Section 34 of Nigeria’s Arbitration Act provides that ‘[a] court shall not intervene in any matter governed by this Act, except where so provided in this Act’. Relying on this provision, the Court of Appeal recently set aside the interim order of a High Court restraining arbitration proceedings, reasoning that the High Court lacked the jurisdiction to make the order. It is argued in this comment that the Court of Appeal may have reached the right decision in that case, but for the wrong reason. Nigerian courts of superior record derive their powers from the Constitution; the Arbitration Act cannot operate to diminish the powers granted to these courts by the Constitution.
Horror Vacui: Or Why Investment Treaties Should Apply to Illegally Annexed Territories
Authors: Wuschka Sebastian , Happ Richard
Published: March 2022

The 2014 Crimea crisis, in addition to issues of general international law, triggered questions relating to international investment law and arbitration. One of these is to what extent a state’s investment treaties bind that state on another state’s territory which it has put under its control by means of annexation. Starting from the assumption that annexation must not be recognized as legal, it seems necessary to adjust the application of this principle of non-recognition in the case that it ultimately benefits an aggressor. Such a situation might arise with respect to investment claims. Having impaired investments in an annexed territory, investors might want to hold the annexing state liable. However, as a jurisdictional hurdle, they need to satisfy a common criterion of investment treaties, which require investments in the territory of the contracting parties. A strict application of this territorial nexus by a tribunal would deprive investors of protection under international investment law. The interest of the international community to sanction illegal acquisition of territory thus clashes with the individual’s interest to have the investment protected under international law. The result might leave the investors in a legal vacuum. Addressing the issue on an abstract level, this article argues that an extension of a state’s investment treaties to annexed territories can well be founded in the law of treaties and is supported by custom and general principles.
How Much Assistance Is Permissible? A Note on the Swiss Supreme Courts Decision on Arbitral Secretaries and Consultants
Authors: George Anya , Menz James
Published: March 2022

This case note discusses the Swiss Supreme Court’s May 2015 decision on the use of arbitral secretaries and legal consultants. It places the ruling in the context of the current international debate about arbitral secretaries, spurred by the Yukos appeal, the Young ICCA and other surveys, and institutional guidelines and notes, focusing on the central issues of appointment, payment, and scope of duties. It concludes that while the decision has certain shortcomings, it represents a milestone and an appropriate, endorsement of the use of arbitral secretaries in arbitration.
The 2017 ICC Expedited Rules: From Softball to Hardball?
Authors: Heitzmann Pierre
Published: March 2022

The 2017 Rules of Arbitration of the International Chamber of Commerce (ICC), in force since 1 March 2017, have adopted new provisions for expedited procedures with the objective of having final awards issued by sole arbitrators six months after the first case management conference. These new provisions apply whenever the value of the claims in question is under USD 2 million. Users of ICC arbitration can opt in to or opt out of the expedited procedures provisions (EPP), partially or totally, regardless of the amount in dispute. The decision to institutionalize expedited procedures is an implicit admission that the objectives of the 2012 Rules have not been met when it comes to improving the time- and cost-efficiency of ICC arbitrations. The new provisions offer users dissatisfied with increased time and costs of arbitration an alternative to expedite the resolution of their disputes under the ICC Rules. While this offer is not novel in the landscape of international arbitration, it is to be welcomed, although it entails new challenges for users, arbitrators, as well as the ICC Court and its Secretariat. In practice, expedited procedures may increase due process challenges by dissatisfied litigants, before and after awards are issued. For these reasons, more than before, selecting a pro-arbitration seat will be important.
Winter of Discontent
Authors: Kaplan Neil
Published: March 2022

This paper examines the major criticisms of arbitration concerning speed and cost and suggests ways in which the arbitral process can be improved so as to achieve more efficiency and speed and reduce the costs of the process. Among the various proposals, the paper addresses in detail the use of short summaries of the parties’ cases, early openings, closing submissions, the use of expert and the tribunal’s powers in relation to costs.
Can Asia Cut the Costs?
Authors: Wiegand Nicolas
Published: March 2022

In recent years, Asian arbitration hubs such as Hong Kong and Singapore are more and more frequently preferred over established venues in Europe or the United States. Apart from the geographical advantage and many other attributes, they are uniquely positioned to provide more cost-effective options for arbitration, which may prove to be one of the major attractions to parties using arbitration. The overall costs for arbitration proceedings still impose a deterring factor that drives away potential users of arbitration, including in booming Asia. To target this issue, this article identifies the main cost drivers and analyses diverging approaches against the backdrop of the legal environment in Asia to make a proposal as to whether and how Asia can cut the costs.
How Long Have You Got?: Towards a Transparent and Streamlined System for Enforcing Foreign Arbitral Awards in China
Authors: Yang Fan
Published: March 2022

Arbitration of China-related commercial disputes has become important because of the growth in trade and investment between China and the rest of the world. Lessons derived from a particular case of recognition and enforcement of a foreign arbitral award in China are of interest to those who are interested in the Chinese reception of arbitral awards. This article will examine the process of enforcing commercial awards in China under the New York Convention (1958). The study will use the concrete experience of the two Australian awards in the Castel v. TCL case to illustrate some deficiencies in the so-called Report System under the current Mainland Chinese law and judicial practice. It will be argued that this Report System needs to be reformed and streamlined. In particular, first, the lower courts should be required to engage the system promptly and without undue delay; secondly, a clear time limit and the consequence of exceeding that time limit should be explicitly provided for each of the stages in the system; and thirdly, the operation of the system should be transparent so that parties can track the progress of their cases once the Report System is engaged. Suggestions will also be made concerning steps which foreign awardholders should take to improve their chances of gaining swift enforcement in Mainland China.
Waiver of the Right to Set-Aside Proceedings in Light of Article 6 ECHR: Party-Autonomy on Top?
Authors: Ribbers Pauline , Knigge Marte
Published: March 2022

Party autonomy is an important principle in arbitration. Parties that opt for arbitration are, to a certain extent, free to organize the arbitral process. The exact scope of this freedom is unclear, especially where fundamental rights of the European Convention of Human Rights (ECHR) are at stake. On 1 March 2016, the European Court of Human Rights (ECtHR) rendered a decision that can shed more light on the scope of the autonomy of parties in arbitration proceedings. In the decision Tabbane v. Switzerland the parties had concluded a so-called ‘exclusion agreement’. By means of such an agreement parties waive, in advance, their right to seek set-aside proceedings at the state court.

This article analyses the decision of the European Court and addresses questions such as: must parties, who have agreed to exclude the right to set aside an award, be regarded as having waived all of their rights guaranteed by Article 6 ECHR? And, how far does the responsibility of states extend for the course of affairs during arbitral proceedings?
The Appearance of Foreign Counsel in International Arbitration: The Case of Egypt
Authors: Omran Amr
Published: March 2022

The ability of arbitrating parties to select their representatives in international arbitration is an extension of the principle of party autonomy. In Egypt, some uncertainty has existed as to the ability of the parties to appoint non-lawyers and foreign counsel as their representatives in arbitral proceedings. The Egyptian Legal Profession Law restricts the right to appear before arbitral tribunals to members of the Egyptian bar, who must be Egyptian nationals. Recent decisions by the Cairo Court of Appeal and the Egyptian Court of Cassation go some way in amending this position, holding that foreign lawyers can represent parties in arbitrations conducted in Egypt, subject to the parties’ agreement. However, unless the Legal Profession Law and the Arbitration Law are amended, uncertainty will remain.
Consent to Investor-State Arbitration in the Second Largest International Investment Protection Agreement: The Correct Interpretive Approach to Article 17 of the OIC Investment Agreement
Authors: Eftekhar Reza , Abedian Hossein
Published: March 2022

The Organization of the Islamic Conference (OIC) Investment Agreement is the second largest multilateral investment treaty worldwide. Attentions were attracted to this deeply dormant Agreement when the tribunal in Hesham Talaat M. Al-Warraq v. Republic of Indonesia rendered its Award on Jurisdiction in 2012, interpreting the critical Article 17 of the Agreement, holding that it contains binding state consent to investor-state arbitration. The jurisdictional question before the tribunal, which may be at issue in the pending cases or which may very well arise in subsequent cases brought under this Agreement, was twofold: (1) whether investor-state arbitration is contemplated in the OIC Investment Agreement; and (2) whether the consent to arbitration contained in Article 17 is binding. In its jurisdictional analysis, in addition to references to Article 31 of the Vienna Convention on the Law of Treaties (VCLT), the tribunal resorted to the principles of contemporaneity and evolutionary interpretation to conclude that Article 17 of the OIC Investment Agreement contained binding state consent to investor-state arbitration. This article considers the viability of the reliance on the principles of contemporaneity and evolutionary interpretation in this context. It argues that the tribunal’s jurisdictional analysis in this regard lacks adequate precision: none of these principles, it seems, could successfully be employed to show the existence of a binding consent to investor-state arbitration in the OIC Investment Agreement. Nonetheless, relying on a proper textual and contextual analysis, the article concludes that Article 17 of the OIC Investment Agreement does seem to contain a binding consent to investor-state arbitration. This conclusion is in line with the ultimate outcome reached by the Al-Warraq tribunal. Nevertheless, the textual and contextual interpretive approach proposed by this article finds fault with the interpretive exercise by the Al-Warraq tribunal to the extent that the issue of existence of binding consent to arbitration under Article 17 of the OIC Investment Agreement is concerned.
Arbitration and New Technologies: Mutual Benefits
Authors: Vannieuwenhuyse Gauthier
Published: March 2022

New technologies such as Big Data, blockchain, machine learning, and text-mining have made it to the legal world, simplifying all phases of the dispute resolution process. Arbitration and these new technologies share a mutually beneficial relationship. On the one hand, new technologies will improve efficiency, cut costs, promote the expansion of arbitration into new segments of the market, and improve outcomes for clients. On the other hand, the proliferation of new technologies will inevitably generate disputes that arbitration is best-suited to resolve. For example, although self-execution limits certain litigation risks concerning the performance of smart contracts, conflicts regarding their definition, interpretation, and general framework are likely to arise. The delocalized nature of the arbitral regime, the flexibility of proceedings, and the straightforward enforcement of awards are key features that make arbitration the optimal dispute resolution mechanism for new technology disputes. New technologies can thus reinforce arbitral proceedings, and arbitration can provide insurance to these emerging practices – these reciprocal benefits should be exploited.
Chinas 2017 Reform of Its Arbitration-Related Court Review Mechanism with a Focus on Improving Chinese Courts Prior-Reporting System
Authors: Zhong Mariana , Tao Jingzhou
Published: March 2022

The Chinese Supreme People’s Court has devoted relentless efforts into reforming China’s arbitration regime, before a formal amendment of the PRC Arbitration Law is put on the National People’s Congress’s legislative agenda. In order to address several outstanding issues including the ‘dual-track review system’ existing in Chinese courts’ review process of domestic and foreign/foreign-related arbitrations, the Supreme People’s Court (SPC) issued several judicial documents including two judicial interpretations in 2017, focusing on regulating and unifying Chinese courts’ review of parties’ applications relating to the validity of arbitration agreements, enforcement and/or set-aside of arbitral awards. This reform further aligns Chinese arbitration with international practices, and sends a strong signal to the international arbitration community about China’s commitment to evolve into an arbitration-friendly environment.
The New York Convention: An Autopsy of Its Structure and Modus Operandi
Authors: De Meulemeester Dirk , Lefebvre Paul
Published: March 2022

The purpose of the New York Convention is to facilitate the enforcement of arbitral awards. It introduces different regimes, i.e. the regime provided by the New York Convention itself, and the two regimes referred to by Article VII.1 of the New York Convention. Little attention has so far been given to those different regimes and, especially, to the possibility of an interaction between those regimes and whether or not such should be authorized. The aim of this contribution is to highlight that the New York Convention is structured and worded precisely to avoid interferences between those different regimes which each operate independently, even if complemented by provisions of domestic law. It is the enforcing party’s privilege to choose between the different regimes. However, in order to respect the rights of defence of the party against whom the award is enforced, this choice should be express, in toto, final and binding for the judge. Failure to expressly opt for a regime leads to the application of the New York Convention regime. Such an approach offers not only the advantage of clarity and simplicity as far as the applicable rules are concerned, but also enhances the equality between foreign and domestic awards, and puts an end to the nineteenth century era of bilateral treaties.
Treaty on Sustainable Investment for Climate Change Mitigation and Adaptation: Aligning International Investment Law with the Urgent Need for Climate Change Action
Authors: Petrofsky Erica , Brauch Martin Dietrich , Touchette Yanick , Cosbey Aaron , Gerasimchuk Ivetta , Sanchez Lourdes , Bernasconi-Osterwalder Nathalie , Garcia Maria Bisila Torao , Potaskaevi Temur
Published: March 2022

The climate change mitigation and adaptation objectives set by the Paris Agreement under the United Nations Framework Convention on Climate Change (UNFCCC) and the broader Sustainable Development Goals (SDGs) under the Agenda 2030 create a need for an unprecedented shift from carbon-intensive to low-carbon investment projects. Investment and the legal regimes that govern it—including international investment law—are critical to this shift. To accelerate it, the authors propose the Treaty on Sustainable Investment for Climate Change Mitigation and Adaptation. One of the winners of the Stockholm Treaty Lab competition, the treaty has three building blocks: (1) encouraging Sustainable Investments; (2) discouraging Unsustainable Investments and eliminating new Unsustainable Investments; and (3) ensuring a just transition to sustainable and low-carbon economies and societies. It allows states to indicate, in schedules to the annexes of the treaty, which sectors will be defined as Sustainable or Unsustainable Investments. It protects and signals policy support for Sustainable Investments, while denying treaty-based procedural rights to Unsustainable Investments and committing states to agree on modalities and timelines for phasing out incentives for Unsustainable Investments, such as fossil fuel subsidies. It includes investor obligations and provides access to justice to individuals and communities through an accountability mechanism.
Effects of Disposal of Investments on Claims in Investment Arbitration
Authors: Zarowna Agnieszka
Published: March 2022

In case of a perceived violation of an investment treaty, an investor may no longer be interested in retaining their investment. They may be faced with strategic decisions as to whether to continue with their investment and whether and how the potential divestment will affect their recourse against the host State under the investment treaty. This article considers the situation of investors who decide to dispose of their investments and effects of such a disposal on the transferor’s claims in investment arbitration. It sets out international arbitral practice on point and considers certain issues pertaining to the effects of disposal of investments on the rights of the transferor. It also looks at the implications that the disposal of an investment may have on the quantum of any claim.