bluuebunny/crossref_metadata_2025 huggingface dataset:
The New Rules of Arbitration of the Court of Arbitration of the Official Chamber of Commerce and Industry of Madrid An Overview
Authors: Bonnin Reynes Victor
Published: March 2022

Five years after the 2003 Spanish Arbitration Act came into force, the Court of Arbitration of the Official Chamber of Commerce and Industry of Madrid (CAM) has entirely modified its arbitration rules. The new set of rules incorporates the major modern arbitration trends which lawyers from other countries are familiar with. This article sums up the main features of the new rules and the statutes of the court to show that the new regulations have increased the transparency of the institution and offers a body of rules to be applied to arbitrations with seats not only in Spain but also all over the world.
The Settlement of Disputes between the Public Administration and Private Companies by Arbitration under Brazilian Law
Authors: Wald Arnoldo , Kalicki Jean
Published: March 2022

The ability of state entities to submit to international arbitration remained the subject of hot debate for a long time under Brazilian law. Brazil’s resistance to arbitrability of disputes involving public administration was not very different from the resistance faced by other countries around the world. Brazil began to overcome traditional hostilities related to arbitration involving state entities in 2005, as a result of legislative reforms, which expressly authorized the use of arbitration in public-private partnerships (PPPs) and in concession contracts, as well as favorable decisions rendered by the Superior Court of Justice. In light of these developments, it can now be said that Brazilian law fully and finally recognizes the capacity of state entities to submit to arbitration. This recognition provides greater security to investors that contract with Brazil’s state entities, and ultimately contributes to the country’s economic growth.
Comments on the Paris Court of Appeal Decision in Czech Republic v. Pren Nreka
Authors: Duprey Pierre
Published: March 2022

In its September 25, 2008 decision in Czech Republic v. Pren Nreka, the Paris Court of Appeal held notably that in ad hoc arbitration under a bilateral investment treaty (BIT), the notion of “investment” must be interpreted in accordance with the terms of the BIT and is not subject to objective criteria or tests external to the BIT, while giving an extremely broad reading to language in a BIT defining an “investment” as “any kind of asset invested in connection with economic activities.” As discussed in the commentary below, this should revive the debate as to whether, in investment arbitration, a common and unified definition of the notion of “investment” should be applicable worldwide and before any arbitral tribunal.
Turkey: Soon to Face a Wave of International Investment Arbitrations?
Authors: Wilske Stephan , Hindelang Steffen , Esin Ismail G.
Published: March 2022

This article describes the still relatively recent changes in Turkey’s attitude towards foreign direct investment (FDI), the wave of FDI inflows as well as Turkey’s commitment to international investment instruments as contained in bilateral investment treaties (BITs) and the Energy Charter Treaty (ECT). Further, this article identifies certain potential catalysts for investment claims against Turkey, describing perceived shortcomings in Turkey’s legislative and administrative system which might carry the potential to trigger such claims by foreign investors against Turkey. This article concludes that the national policy-makers in Turkey should carefully analyze legislative and administrative reform decisions in light of Turkey’s commitments contained in the international investment instruments to which Turkey has subscribed.
The Proper Law of the Arbitration Clause: A Challenge to the Prevailing Orthodoxy
Authors: Bantekas Ilias
Published: March 2022

It has recently been established, at least before English courts, that where the parties have failed to set out the proper law of the arbitration clause, this is necessarily, and by mandatory default, the law of the seat of the arbitration. The justification for this assumption is that if this were not so, then the parties may have access to two distinct curial laws. This assumption in favor of the law of the seat, however, goes against the ordinary assumption that in the absence of a contrary provision by the parties, the law applicable to the arbitration clause will follow the proper law of the contract. Moreover, the justification offered by the courts is pointless in circumstances where the parties in fact designate the law governing the arbitration clause which is contrary to the law of the seat. Ultimately, it is up to the arbitrators and the courts of the lex arbitri to decide on any conflicts of civil procedure law that may arise.
Ensuring Party Equality in the Process of Designating Arbitrators in Multiparty Arbitration: An Update on the Governing Provisions
Authors: Bevilacqua Thomas , Ugarte Ricardo
Published: March 2022

The arbitration world has long struggled with how best to ensure fairness in the appointment of arbitrators in disputes among three or more parties. The French Cour de cassation’s 1992 Dutco decision is widely credited with calling attention to the question and with spurring leading arbitration institutes to revise their rules to address the appointment process in multiparty cases. Although the solutions adopted differ in some particulars, most major sets of rules now either permit, or else require, the institute to designate the entire tribunal in certain multiparty instances. A number of national arbitration laws also address the question in various ways, with one common thread existing in a sizeable subset of these laws: their protective provisions apply whenever one party enjoys a privileged role in the designation process. This article also examines the relatively modest body of arbitral and judicial precedents existing on the question, and this examination reveals two emerging trends: treating multiple parties named on the same “side” of a dispute as a single entity, and finding that those multiple parties have similar interests. Either of these “solutions” allows multiparty arbitrations to be handled as if they were classic bipartite arbitrations, and for difficulties in the constitution of tribunals to be avoided. The authors conclude that the simplest solution is for parties more routinely to use their arbitration agreements to empower respected arbitration institutes to appoint the entire tribunal, either in all cases or upon the appearance of a disagreement as to a designation among multiple parties on either side.
Institutional and Ad Hoc Perspectives on the Temporal Conflict of Arbitral Rules
Authors: Greenberg Simon , Mange Flavia
Published: March 2022

The question of which version of arbitration rules applies to arbitration proceedings remains relevant to contemporary practice in the light of recent, conflicting domestic court decisions as well as recent and forthcoming revisions to major sets of arbitral rules, notably those of the International Chamber of Commerce (ICC) and United Nations Commission on International Trade Law (UNCITRAL). Should arbitral tribunals and institutions apply the arbitral rules in force at the time of the conclusion of the arbitration agreement, or that in force at the time of commencing arbitration? This article examines both the theoretical and practical issues involved in answering that question, taking account of historical and recent arbitral and domestic case law, and the different approach taken in ad hoc arbitration vis-à-vis institutional arbitration.
Pre-arbitral Urgent Relief: The New SCC Emergency Arbitrator Rules
Authors: Shaughnessy Patricia
Published: March 2022

Parties who have agreed to arbitrate may sometimes need to obtain urgent relief at the outset of a dispute before the arbitral tribunal is constituted, but are disinclined to seek such relief at a court. The Arbitration Institute at the Stockholm Chamber of Commerce (SCC), has adopted new Rules which make it possible to obtain early interim measures even before arbitral proceedings have been initiated. The new Rules allow for the appointment of an emergency arbitrator within 24 hours of an application and for the emergency arbitrator to make a decision within five days of the appointment. While the new procedure offers opportunities for parties to quickly obtain early urgent relief, it also raises some issues which are discussed in this article.
Is This a Great Leap Forward? — A Comparative Review of the Investor-State Arbitration Clause in the ASEAN-China Investment Treaty: From BIT Jurisprudential and Practical Perspectives
Authors: Shen Wei
Published: March 2022

A major feature of modern bilateral investment treaties (BITs) is to allow investors to access international tribunals such as ICSID for the resolution of disputes between the investor and the host state. Both ASEAN Member States and China are active BIT players and entered into more than 240 and 120 BITs respectively. With tremendous political, economic, and legal significance, ASEAN and China concluded an investment treaty in 2009. The focus of this article is to scrutinize key aspects of the investor-state arbitration clause in this new regional treaty from BIT jurisprudential and practical perspectives, in particular, the Chinese BIT perspectives. Compared to old-generation Chinese BITs, this treaty is leaning towards a liberal stance, further facilitating investors’ access to international arbitration for investment disputes, which in turn promotes liberalism and unity in BIT activities in the region.
Learned Lawyers Attest: It Is Advantageous To Be Right in (an Austrian) Court
Authors: Steindl Barbara
Published: March 2022

This article reviews arbitration-related Austrian Supreme Court judgments rendered between January 2008 and February 2010. Proceedings dealing with claims that marginally refer to arbitration although neither of the parties’ allegations nor the courts’ analysis implicate Austrian or foreign arbitration and enforcement laws or treaties, as well as proceedings dealing with provisions of the Austrian Arbitration Law prior to its 2006 amendment which are not reflected in the current law, were disregarded. This review covers jurisprudence on the issues of (i) estoppel and public policy; (ii) the law applicable to the (substantive) validity of the arbitration agreements and their extension to third-party beneficiaries; (iii) the availability of partial set-aside; (iv) venire contra factum proprium under Article V(1)(a) of the New York Convention; (v) the admissibility of third-party intervention in arbitration; and (vi) the authorization required for an international arbitral institution’s body to certify arbitral awards.
Enforceability of Multi-Tiered Dispute Resolution Clauses
Authors: Kayali Didem
Published: March 2022

Multi-tiered dispute resolution clauses comprise different steps which begin with various alternative dispute resolution (ADR) techniques. In these clauses, arbitration is designed as the last step if the dispute cannot be resolved by preliminary ADR efforts. However, problems occur regarding the enforceability of these clauses when one of the parties does not comply with the procedure designed in the contract. This article seeks to define the nature of multi-tiered dispute resolution clauses in the light of the different views of scholars, courts, and arbitral tribunals, to ascertain the drafting problems that hinder their enforceability, and to clarify the essentials for an effective multi-tiered dispute resolution clause. The main finding of the article is that once drafted in an operative way, a multi-tiered dispute resolution clause should be respected and enforced as the choice of the parties.
Arbitrating Labor Disputes in Switzerland
Authors: Wildhaber Isabelle , Johnson Alexandra
Published: March 2022

Long regarded as against nature, the relationship between arbitration and labor law has generated a growing interest in recent years, with the realization that arbitration can be an effective tool for the resolution of individual employment disputes, especially for top-level managers or international athletes. The Swiss system broadly recognizes the arbitrability of individual employment disputes on an international level. On a domestic level, arbitrability of individual employment disputes is more limited following a decision of the Swiss Federal Tribunal of June 28, 2010. However, under the new Swiss Civil Code of Procedure, which will enter into force on January 1, 2011, parties to domestic arbitration agreements will be able to opt into the international regime and therefore possibly circumvent such limitation. Furthermore, the article discusses particularities related to arbitration agreements in collective employment contracts, as well as arbitration of collective labor disputes.
Are Arbitrators Not Human? Are They from Mars? Why Should Arbitrators be a Separate Species?
Authors: Zaiwalla Sarosh
Published: March 2022

Is an arbitrator an ''employee" of the parties? The English Court of Appeal said yes. Arbitration agreement-choice of arbitrator religion or belief. Can an international arbitration agreement provide that all arbitrators must be members of a particular religious belief ? Discrimination-EU Council Employment Directive 200/78-Employment Equality (Religion or Belief) Regulations 2003-English Supreme Court.
Using an Event Study Methodology to Compute Damages in International Arbitration Cases
Authors: Dellepiane Santiago , Abrantes-Metz Rosa M.
Published: March 2022

Standards for damages assessments generally encourage analysts to rely on market-based information in developing a valuation opinion. In international arbitration cases, when the disputes at stake involve-or ultimately impact-a publicly traded company whose shares are traded in liquid, efficient markets, and when specific dates of breach (and their announcement) can be traced, the economic expert may test or use an event study approach to shed light on the quantum of damages. The event study method, initially developed in 1969, has been extensively utilized in domestic U.S. litigation for estimating damages and yet is seldom heard of in international arbitration cases.

Through an event study, the economic expert may infer the quantum of damages associated with specific events directly affecting the stock market capitalization of a publicly traded company. By isolating the effects of events that are part of the claim from the impact on stock prices from other events that may be influencing its evolution but are not part of the actions being claimed for (i.e., industry-specific trends or economy-wide shocks) the event study method can provide a clean lens to measure damages that can be directly attributed to the actions under dispute. In this article we elaborate on how to use the event study to assess damages and make recommendations as to its suitability for international arbitration cases.
Witness Preparation: Memory and Storytelling
Authors: Kirby Jennifer
Published: March 2022

This is the text of a speech the author gave in March 2011 at Vienna Arbitration Days. The author delivered it to an audience of mostly civil law lawyers prone to be skeptical about the legitimacy of witness preparation and the value of witness testimony in international arbitration. The speech aimed to clarify the ethical basis for witness preparation, as well as its practical importance in light of the fallibility of human memory. The author also sought to demonstrate the power and value of witness testimony as a form of storytelling, principally by recounting stories from her own life. The speech prompted an outpouring of reaction, with people finding it "inspirational" and sharing related experiences from their own lives. It is this response that has led the author to publish the speech here to share it with the international arbitration community more broadly.
The Three Mediations (Light and Shadow of the Italian Example)
Authors: Rubino-Sammartano Mauro
Published: March 2022

Three types of mediation (voluntary, court recommended, and now mandatory mediation) are in force in the Italian legal system. Mandatory mediation is provided for some classes of disputes and the mediator is appointed by a mediation centre which must satisfy the Ministry of Justice as to the existence of the statutory requirements for its existence. Mediators must possess a university degree and must have successfully followed a 50-hour training course. The new legislation has been the subject of agreement by some and of criticism by others. The mandatory nature of it is seen as the main highlight of this legislation, while the requirements for mediation centers and the training of mediators may be and should be improved.
The Commissions Proposal to Amend the Arbitration Exception in the EC Jurisdiction Regulation: How Much Ado about Nothing Can End Up in a Comedy of Errors and in Anti-sui
Authors: Lazic Vesna
Published: March 2022

This article analyses the Proposal to amend the arbitration exception under the Brussels Jurisdiction Regulation. It maintains the view that the deletion of the arbitration exception either completely or partially is undesirable. The main reason is that the Proposal would substantially influence the existing regulatory framework on arbitration in the EU Member States. In particular, the critical view is expressed on the effects that the Proposal would have on the applicability of the 1958 New York Arbitration Convention. Besides, it discusses a number of major deficiencies in the wording of the proposed amendments. Reasons are given as to why the interface of arbitration and litigation would be more appropriately dealt with in a separate instrument than within the context of the Regulation. Finally, it suggests more efficient methods to enhance the effectiveness of arbitration agreements should the EU legislator opt to pursue further the idea of a partial deletion of the arbitration exception.
Investment Disputes after Argentinas Economic Crisis: Interpreting BIT Non-precluded Measures and the Doctrine of Necessity under Customary International Law
Authors: Martin Antoine
Published: March 2022

Following a major economic crisis in late 2001, Argentina undertook several reforms which led to investment disputes before ICSID. The major issue for the tribunals was to establish in which circumstances the 'state of necessity' doctrine is deemed applicable to a certain situation, which implied looking at the legal grounding of such derogation. Exceptional measures tend to be justified on two grounds. One is the generally accepted principle that customary international law (CIL) exempts states from liability in circumstances of necessity or force majeure according to Article 25 of the ILC Draft Articles on State Responsibility. Alternatively, the state of necessity can be considered in the light of specific treaty provisions - also known as 'non-precluded measures' (NPM) clauses - which ensure that the investment treaty protections 'shall not preclude […] the application of measures necessary for the maintenance of public order, the fulfilment of its obligations with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests'. The presence of two distinct sources of law for necessity however raised many issues which this paper considers. The issue of NPM provisions was extensively considered in 2007 in an article by Burke-White and von Staden which suggested that states should be left with a certain autonomy - or margin of appreciation - in deciding whether necessity should be invoked. Yet, the argument was formulated while only one of the four decisions rendered at the time had been the object of an annulment procedure, and essentially elaborated on what the tribunals ought to have done, or at least on how future tribunals ought to consider the issue. Since then, however, three other decisions have all been through a similar process and this article adds to the discussion by commenting upon the reasoning of the Annulment Committees which overall seems to confirm the autonomy suggestion.
Non-party Autonomy: Displacing the Negative Effect of the Principle of Competence-Competence in England?
Authors: Gaffney John
Published: March 2022

In Excalibur Ventures, the English High Court issued an anti-arbitration injunction preventing the claimant from further pursuing ICC arbitration proceedings seated in NewYork and refused to stay court proceedings initiated by the claimant (against the same defendants to the arbitral proceedings) in London's Commercial Court, reserving to itself the determination of the foreign arbitral tribunal's jurisdiction. At first sight, the decision does not appear to be very 'arbitration-friendly' and perhaps even something of an assault on the principle of the negative effect of the 'competence-competence'. However, the decision should be viewed in the context of the unusual circumstances that existed in that case. This article examines the reasons giving rise to the court's decision and considers its wider implications for international arbitration.

So flash'd and fell the brand Excalibur: But ere he dipt the surface, rose an arm Clothed in white samite, mystic, wonderful, And caught him by the hilt, and brandish'd him Three times, and drew him under in the mere.

Morte d'Arthur

Alfred, LordTennyson (1809-1892)
The New CIETAC Arbitration Rules of 2012
Authors: Lu Song
Published: March 2022

Arbitration rules play a vital role in the promotion of an international arbitration institution. They also serve as one of the major attractions to potential arbitration users of that institution's service. In 2012, China International Economic and Trade Arbitration Commission (CIETAC) has again effected a substantial revision of its arbitration rules, which came into force on 1 May 2012. This article discusses the main changes made this time to the CIETAC Rules, which touch upon a number of important issues including consolidation of arbitrations, the appointment of arbitrators, tribunal-ordered interim measures, the seat of CIETAC arbitration, exchange and service of documents, arb-med-arb approach, suspension and termination of arbitral proceedings, etc. Practical advice relating to those changes has also been provided where appropriate.
BITs in Pieces: The Effectiveness of ICSID Jurisdiction after the ICSID Convention Has Been Denounced
Authors: Rodner James Otis , Estévez Jaime Martínez
Published: March 2022

Denounciation of the ICSID Convention by a Member State seems to be an effective way of excluding ICSID jurisdiction in Bilateral Trade Agreements (BITs). However, if the ICSID Convention is read together with the bilateral trade agreement that calls for ICSID and using principles of interpretation of international conventions, one arrives at the conclusion that, for investments completed prior to effective date of denunciation in most BITs, the ICSID jurisdiction would survive the denunciation of the ICSID Convention. This has recently been confirmed in the award in the case of Murphy Exploration and Production Company International v. Republic of Ecuador, regarding the modification of the scope of ICSID in a BIT under Article 25(1) of the ICSID Convention.
The Discrimination Conundrum in the Appointment of Arbitrators in International Arbitration
Authors: Kadouf Hunud Abia , Oseni Umar A.
Published: March 2022

The problem of discrimination in the appointment of arbitrators has recently drawn considerable amount of attention from both practitioners and researchers alike in the field of international arbitration. A number of problems endemic to international arbitrations, including that of racial biases, have already been addressed by researchers in the field. However, the issue of racial and religious discrimination is of special interest and requires serious debate. This article attempts to discuss the issue of racial and religious discrimination in light of the recent decision of the Supreme Court of the United Kingdom in Jivraj v. Hashwani [2011] UKSC 40.The article tries to suggest a balanced view for promoting sustainable practices in international arbitration. This article further tries to emphasize the point that while party autonomy should be respected in all cases, nevertheless, parties should not be encouraged to introduce discriminatory elements in their arbitration agreements.
Stay of Enforcement Decisions in ICSID Annulment Proceedings: Taking Stock
Authors: Volkmer Sven-Michael
Published: March 2022

Article 52(5) of the ICSID Convention allows an applicant for annulment of an ICSID award to request that enforcement of the award be stayed while the annulment decision is pending. Although ICSID ad hoc committees have always granted such requests, they have disagreed as to whether a continued stay of enforcement should be conditional. One of the key concerns shared by these committees appears to be that continuation or termination of the stay should not undermine the annulment application's practical outcome.
Are Challenges Overused in International Arbitration?
Authors: Baker Mark
Published: March 2022

This article discusses the prevalence of challenges to arbitrators in international arbitration proceedings. The authors analyse the available data on challenges in both international commercial arbitrations and in public investment treaty arbitrations and highlight differences between the two in relation to this issue.
Towards a Truly International Court of Arbitration
Authors: Templeman John
Published: March 2022

The time has come for the current means of resolving international commercial disputes to be modernized and for an a-national approach, comparable to that of International Centre for Settlement of Investment Disputes (ICSID), to be adopted. This article proposes the creation of a truly international court of arbitration, established through a multilateral convention, to usher in a new age of international commercial dispute resolution.
Will Australia Trust Arbitrators with Antitrust?
Authors: Downie Colette
Published: March 2022

International arbitration has gained acceptance in many jurisdictions as a convenient method for resolving competition law disputes. In Australia, it remains unclear whether competition disputes are arbitrable, even though Australian courts and legislatures have recognized the legitimacy of arbitration as a dispute resolution process. This article outlines a model which would allow competition arbitration to operate within the Australian commercial and legal environment. Options are presented to alleviate the difficulties which continue to be experienced during US and EU antitrust arbitration proceedings and at the award enforcement stage. It is envisaged that the recommendations made by this article will enable international arbitration to become a complementary method of competition law enforcement, if Australia trusts arbitrators with antitrust.
The Use and Misuse of the Corruption Defence in International Investment Arbitration
Authors: Meshel Tamar
Published: March 2022

This article argues that while a mutually beneficial relationship can be cultivated between international investment arbitration and anti-corruption policies, the recent emergence of a state-invoked 'corruption defence' as a complete defence to liability for alleged breach of investment protection obligations may hamper the sustainability and effectiveness of such a relationship. In the context of a corrupt host state, for instance, and particularly a corrupt developing host state, the growing use of this defence may arguably frustrate the objectives of both foreign investment protection and anti-corruption policies. This was the case, for instance, in the 2006 investment arbitration World Duty Free Co. Ltd. v. Republic of Kenya, in which the arbitral tribunal accepted the corruption defence invoked by Kenya as a complete defence to the investor's claims of alleged breach of investment protection obligations. In so doing, the tribunal arguably disregarded the potentially detrimental effects such a decision may have on Kenya's ability to fight corruption and attract further foreign investment, both of which are of crucial importance to its future development. This article argues, therefore, that investment arbitration tribunals ought to proceed with caution when permitting a corrupt host state, and particularly a developing one, to rely on the corruption defence, and ought to devise alternative remedies to the complete rejection of the claims where investor corruption is established.
The Chinese European Arbitration Centre
Authors: Brödermann Eckart
Published: March 2022

The Chinese European Arbitration Centre (CEAC) is specialized in China-related trade and investment cases. Contrary to its name, CEAC is tailor-made for cases from any part of the world which relate to the Chinese market, even if only remotely. Established in September 2008, CEAC has started to administer (seven) cases in 2012. The article analyses CEAC's key characteristics, such as its concept of 'perceived neutrality', and the CEAC Rules in comparison with the underlying UNCITRAL Arbitration Rules.
Recent Developments in Third-Party Funding
Authors: Shannon Victoria
Published: March 2022

This article addresses recent developments in third-party funding that occurred during late 2012 and early 2013 in the three leading jurisdictions: Australia, the United Kingdom and the United States. The most important developments are the following. On 22 April 2013, the Australian Securities and Investment Commission (ASIC) issued regulatory guidelines clarifying the status of funders with respect to ASIC's regulations and detailing how funders should manage conflicts of interest and handle certain provisions of their funding arrangements. In the United Kingdom, the Jackson Reforms took effect on 1 April 2013, bringing sweeping changes to the allowable fee agreements, discovery rules and cost allocations in that jurisdiction. In the United States, at least twenty pieces of legislation have been filed in various state legislatures since the beginning of 2013 aimed at regulating the third-party funding industry in a variety of different ways. Thus, in these three leading third-party funding jurisdictions, it appears that the legislatures - rather than the courts - are seeking to lead the way in shaping the future of the third-party funding industry.
Are Russian Courts Able to Keep Control over the Unruly Horse?
Authors: Kucher Alyona , Asoskov Anton
Published: March 2022

On 1 April 2013, the Higher Arbitrazh Court of the Russian Federation (HAC), Russia's highest commercial court, published Information Letter No. 156 dated 26 February 2013 on its website, in which it approved the Review of Arbitrazh Court Practice in Applying the Public Policy Exception as a Ground for Refusal to Recognize and Enforce Foreign Judgments and Arbitral Awards (the 'Review') and recommended that it be used as a guidance by all Russian Arbitrazh (commercial) Courts. Violation of public policy is one of the classic and perhaps the most frequently invoked objections to the recognition and enforcement in Russia of foreign judgments and arbitral awards. For this reason, it has been of vital importance for Russian court practice that a more precise definition of public policy, and the extent to which this concept should be applied, be formulated. The Review sets forth the legal positions of HAC based on specific cases where violation of public policy has been invoked. This article provides an overview of the main legal positions expressed in the Review.
The Arab Spring and Arab Approaches to International Arbitration
Authors: Ziadé Nassib G.
Published: March 2022

Arab countries have taken a number of steps over the years to strengthen the role that arbitration can play in their international commercial and investment relations. These include the adoption of liberal laws on arbitration, accession to international conventions on arbitration and the establishment of regional arbitration centres. Both the arbitration centres and the liberal arbitration laws are likely to be durable despite the changes of regime. Problems could be expected, however, if new governments begin to lose sensitive cases submitted to Western arbitral institutions, including the International Centre for Settlement of Investment Disputes (ICSID). Certain measures, if taken by ICSID, could nevertheless bolster confidence in the Arab world.
Recent Trends in Commodities Arbitrations
Authors: Clapham Jason
Published: March 2022

Since the start of the global financial crisis in 2007 and 2008, commodity prices have fluctuated wildly. For many commodities, the price fluctuations during this period have been more extreme than has historically been the case. With such volatility in the market, it is unsurprising that there has been a dramatic increase in disputes between parties to commodities contracts. This article considers the issues which often arise in commodities-based arbitrations.
Reference of Non-Signatories to Arbitration in Composite Transactions: Did the Indian Supreme Court Get it Right?
Authors: Mahajan Kartikey , Bhatt Malak
Published: March 2022

In Chloro Controls India Pvt. Ltd. v. Severn Trent Water Purification Inc. and others, the Indian Supreme Court ruled that non-signatories to arbitration agreements for foreign arbitrations can be referred to arbitration especially in the cases of composite transactions. This is possible when a non-signatory is claiming through a party to the arbitration agreement. Although this is another step towards the development of a pro-arbitration jurisprudence in India following the ruling in Bharat Aluminium Co. v. Kaiser Aluminium, the judgment raises many concerns, such as causing long delays in the conclusion of arbitral proceedings and creating uncertainty as to the nature of the proceedings under section 45 reference applications. This article critically examines the ruling, identifies the relevant law, and explains the limits of its application.
The Tarnished Brand of CIETAC: Understanding the 2012 CIETAC Dispute
Authors: Rose Marianne
Published: March 2022

In recent years China has forged an international arbitration reputation, gained through the rise of China International Economic and Trade Arbitration Commission (CIETAC), China's pre-eminent foreign-related arbitral body for the dispute resolution of issues connected with Chinese economic and trade interests. However, CIETAC's very public internal feud of 2012 has brought into question the ability of China to provide a cohesive foreign-related arbitral framework that can deliver certainty of arbitral awards and fairness to foreign participants. This article provides an account of the dispute and its consequences by examining the amendments to the CIETAC arbitration rules and the Civil Procedure Law (CPL). It considers how these legislative changes both internationalized arbitration in China and also perpetuated the conflict between CIETAC Beijing and two of its sub-commissions. Finally, this article questions whether CIETAC remains a credible institution for the resolution of foreign-related commercial disputes in China.
Bias in Arbitral Decision-Making: Rescuing the Mentschikoff Archives from a Half Century of Oblivion
Authors: Klykova Kristina
Published: March 2022

The archived raw research results of Soia Mentschikoff's experiment on arbitral decisionmaking are analysed. This analysis could be of interest to the arbitration practitioners and those interested in how arbitrators arrive at their decisions. It questions the objectivity and possible bias of the arbitrators, highlighting the subjective factors that affected the arbitrators in their decision-making and decision-consensus processes during the experiment. Mentschikoff's methods for conducting the experiment are discussed to suggest the possible framework for future research projects. Moreover, other issues raised in the experiment are introduced, serving as a possible basis for further research undertakings.
The Legal Framework for Counterclaims in Investment Treaty Arbitration
Authors: Atanasova Dafina , Benoit Adrián Martínez , Ostranský Josef
Published: March 2022

The notion of counterclaims has recently become a hotly debated topic in the context of investment treaty arbitration as the scholarship and case law have questioned the limits traditionally associated with counterclaims in international dispute settlement. This article critically examines this new approach, together with competing views, and presents a general legal framework and methodology for assessing counterclaims in investment treaty arbitration. We submit that the recent views, spearheaded by Prof Reisman´s dissenting opinion in Roussalis v. Romania, must be rejected. The present article starts with an introduction of the concept of counterclaims in international dispute settlement and investment treaty arbitration in particular, and sketches out the legal bases for their admission in different dispute settlement mechanisms in order to emphasize similarities and differences among them for comparative arguments used in the main thrust of the article. In turn, it critically analyses the three general requirements for admitting counterclaims: parties' consent, close connection with the primary claim, and the issue of party identity. We conclude with an outline of our legal framework where we posit that the availability of host states' counterclaims depends largely on the wording of the applicable legal sources and universal approaches that brush away important differences among them must not be encouraged.
The UNCITRAL Model Law and Awards infra petita
Authors: Ahmad Jawad , Tan Paul
Published: March 2022

There is an abundance of scholarly writing on the UNCITRAL Model Law and arbitral tribunals rendering decisions on issues beyond the parties' submissions (ultra petita).The same cannot be said where the arbitral tribunal fails to decide on the issues submitted by the parties (infra petita). In BLB and another v. BLC and others [2013] S.G.H.C. 196, a Singapore High Court decision, the court set aside an award infra petita under Article 34(2)(a)(iii) of the UNCITRAL Model Law and Section 24(b) of the Singapore International Arbitration Act (Cap. 143A). The ruling raises interesting issues that warrant a closer inspection of the UNCITRAL Model Law and awards infra petita.

This article addresses two questions. First, which of the Article 34(2) grounds under the UNCITRAL Model Law do awards infra petita fall under? Second, is making a request for an additional award under Article 33(3) a prerequisite to apply to set aside an award under Article 34(2)? These questions are addressed and analyzed pursuant to the Singapore High Court ruling in BLB and another v. BLC and others [2013] S.G.H.C. 196 and to the drafting history of the UNCITRAL Model Law.
Loosening the Grip of the Contracts (Rights of Third Parties) Act 1999 on Arbitration Agreements
Authors: Ahmed Masood
Published: March 2022

Section 8 of the Contracts (Rights of Third Parties) Act 1999 extends its controls to cover arbitration agreements and, in essence, makes a third party wishing to enforce his rights under a contract which contains an arbitration agreement a party to that arbitration agreement. This article critically evaluates section 8 and investigates the potential adverse impact which it may have upon the institution of international commercial arbitration. This article also considers how this area of law may be reformed so as to bring it in line with internationally accepted arbitral principles and practices.
Enforcement of Foreign Awards in Mainland China: Current Practices and Future Trends
Authors: Liu Joe , Cheng S.C. Teresa
Published: March 2022

The ability to enforce an arbitral award in Mainland China is a crucial factor for every non-Chinese party to consider when entering into an arbitration agreement or arbitrating a dispute with a Chinese party. This article examines the Chinese courts' current practices of recognizing and enforcing awards made in commonly chosen seats for China-related disputes, such as Hong Kong, Singapore, London and Stockholm. It concludes by exploring future trends that are discernible from statistics collected by the Supreme People's Court of China, the authors' prior discussions with Chinese judges, and a review of several noteworthy decisions rendered by the Chinese courts in recent years.
Practical Criteria for Selecting International Arbitrators
Authors: López Carlos Alberto Matheus
Published: March 2022

This article addresses the important issue of the selection of the arbitrator which is a fundamental right of the parties since the quality of the arbitration depends on the quality of the arbitrator. It examines the selection process and practical considerations in choosing an arbitrator. In this sense, we analyze objective factors of selection, such as the expertise of the arbitrator, number of arbitrators, language of the arbitration, availability of the arbitrator, impact on the selection of the chairman, sex of the arbitrator, independence and impartiality, standing and influence of the arbitrator, and religion of the arbitrator. Then we examine the subjective factors of selection, indicating the types of arbitrator's personality that should be avoided (egomaniac, superlawyer, White Knight, wimp, superjudge and unemployed opportunist). Finally, we propose some practical steps to select an arbitrator, and some guidelines that should be followed to practice an appropriate pre-appointment interview.
Are Investment Tribunals Adjudicating Political Disputes?
Authors: Titi Catharine
Published: March 2022

Conceived from its inception as a tool for the depoliticization of disputes involving a foreign investor and a sovereign state, Investor-State Dispute Settlement (ISDS) has emerged as a popular alternative to state justice and diplomatic protection and it has evolved into the centrepiece and guarantor of the international system of investment protections. And yet, despite the common perception of its neutrality as a forum for the non-political resolution of disputes, the scope of subject matters that fall within the purview of arbitral control and the utilization of political means by states and investors alike in order to interfere with or influence the arbitral process shed light on some unusual aspects of investment arbitration and reveal that ISDS has been heading down a trajectory of repoliticization.
The Role of the Seat in International Arbitration: Theory, Practice, and Implications for Australian Courts
Authors: Barry Matthew
Published: March 2022

A complex question in international commercial arbitration is the extent to which an enforcement court should defer to the decisions of courts at the seat of arbitration. In the recent case of Gujarat, the Federal Court of Australia held that it would generally be inappropriate for an Australian court, called upon to enforce an arbitral award under the International Arbitration Act 1974 (Cth) (IAA), to reach a different conclusion on the same question as that reached by the court at the seat of arbitration. This article critically examines Gujarat in light of the broader debate about the role of the seat in international arbitration jurisprudence. The article contends that the role of the seat is far from settled. In the first place, there are competing theories of international arbitration, each according to a different degree of importance to the seat of arbitration. Second, enforcement courts applying the provisions of the New York Convention have taken very different approaches to the decisions of courts at the seat of arbitration. US courts, for example, generally defer to the decisions of courts at the seat; French courts, on the other hand, tend to disregard the decisions of courts at the seat. Nevertheless, this article contends that the deferential approach taken by the Federal Court in Gujarat and the US courts is the correct one. Australian courts should, for strong policy reasons, defer to the decisions of courts at the seat of arbitration, save in exceptional cases where such decisions are shown on the basis of cogent evidence to be partial and dependent or in violation of basic principles of justice. This approach promotes finality and efficiency in international arbitration whilst upholding the international rule of law.
Recent Developments in International Energy Dispute Arbitration
Authors: Bars Benoit Le
Published: March 2022

This article addresses the challenges for states and specialized arbitrators and institutions facing an increasing number of energy-related arbitrations. The energy sector playing a key role in the broader context of international political economy, these disputes raise fundamental issues for governments and the future of international treaties, notably the Energy Charter Treaty (ECT).
Gold Reserve Inc. v. Bolivarian Republic of Venezuela: Enshrining Legitimate Expectations as a General Principle of International Law?
Authors: Monebhurrun Nitish
Published: March 2022

In recent years, arbitral tribunals have frequently referred to the concept of legitimate expectations when analyzing a state’s obligation to provide fair and equitable treatment. Indeed, an investor’s legitimate expectations have become so central to the fair and equitable treatment obligation that the latter is now rarely invoked without reference to the former. Notwithstanding the increasing importance of this concept, however, the legal nature of legitimate expectations is still unclear. A minority of arbitral tribunals have categorized legitimate expectations as a general principle of international law. This trend was followed in the recent award in Gold Reserve Inc. v. Bolivarian Republic of Venezuela. This note examines the legal analysis of the Gold Reserve tribunal, before concluding that—if understood in a narrow sense—the concept of legitimate expectations can indeed be understood as a general principle of international law.
Prejudgment Interest: An Economic Review of Alternative Approaches
Authors: Duarte-Silva Tiago , Dolgoff Aaron
Published: March 2022

There is no consensus in the economic literature as to the appropriate measure of prejudgment interest to apply to damages. In this article, we review various proposed alternative methods for determining prejudgment interest rates: the claimant’s ex post or hindsight cost of capital; the claimant’s ex ante or opportunity cost of capital; the respondent’s borrowing rate; and the risk-free interest rate. Upon examining each method’s economic rationale and merits we conclude that where the objective is full compensation to the claimant the risk-free interest rate is the appropriate measure of prejudgment interest. Our examination of awards in international arbitration shows a prevalence of rates that are not associated with the claimant or the respondent, but rather are consistent with a risk-free rate approach or estimates of what arbitrators deem to be reasonable commercial rates.
Qualitative Analytical Models for Arbitration
Authors: Sheridan Iain
Published: March 2022

The author identifies three analytical models that may contribute to improving the processes and outcomes of international arbitration. The three analytical models selected are: (1) mind map diagrams that enable the accurate, condensed summarizing of complex, voluminous cases; (2) simplified evidence charts that set out the arguments and supporting evidence relied on by the applicant, the respondent or both; and (3) cause and effect diagrams that facilitate the retrospective dissection of a case as a means of identifying areas for improvement.