bluuebunny/crossref_metadata_2025 huggingface dataset:
Vorvertragliche Schiedszuständigkeit
Authors: Wicki Jodok , Gabriel Simon
Published: April 2022

May arbitral jurisdiction apply to culpa in contrahendo actions, if parties have merely exchanged drafts of a contract which encompasses an arbitration agreement? From a Swiss legal perspective – as a rule – the exchange of drafts of contracts does not bind the parties due to lack of intention to be bound (“Rechtsfolgewillen”). However, in exceptional constellations the mutual will of parties to conclude an arbitration agreement and thus to regulate the dispute resolution mechanism exists prior to the conclusion of the substantive contract. In our view, exceptions may be justified if (i) there is a usage among the parties to always conclude the same arbitration agreement, (ii) there are perceptible interests of both parties to conclude an arbitration agreement prior to the substantive contract (e.g. neutrality of the forum, common language, expert arbitrator, etc.), (iii) there is evidence for a mutual will to conclude an arbitration agreement prior to the substantive contract (e.g. “mark-up” comment which confirms arbitration agreement). In such constellations arbitral jurisdiction may be accepted for culpa in contrahendo actions.
Kritische Gedanken zur Revision von Art. 7 IPRG im Lichte eines praktischen Beispiels
Authors: Berger Bernhard
Published: April 2022

Since 20 March 2008, a Parliamentary Initiative is pending before the Swiss Parliament which aims at amending Article 7 of the PILS in the sense that Switzerland would accede to the theory of the so-called "negative effect" of competence-competence. In the ASA Bulletin vol. 3/2010 at pp. 478-485, Pierre-Yves Tschanz recently presented his views on the advisability to vote in favor of the proposed amendment ('De l'opportunité de modifier l'art. 7 LDIP'). The author of the present article considers that a recent case decided by the Swiss Federal Supreme Court (BGer 4A_279/2010) gives rise to some critical reflections on the proposal to amend Article 7 of the PILS. Besides a number of legal reservations, the author is not convinced that, as opposed to what the text of the Initiative promises, importing the "negative effect" of competence-competence into Swiss law would boost and further promote Switzerland as a major place for international arbitration. In addition, he believes that it is doubtful whether the proposed amendment would be in the best interests of the Swiss economy. While reducing the risk of parallel proceedings before arbitral tribunals and state courts is a concern that deserves to be supported, the author suggests that the proposed amendment to Article 7 of the PILS does not appear to be the appropriate way to proceed in this matter. Instead of going for a "national solo", it would be much wiser to concentrate the Swiss recourses on helping to develop uniform transnational standards in relation to potential conflicts between arbitral and state court jurisdiction. As a first step, for example, the UNCITRAL could and should prepare a Recommendation regarding the interpretation of Article II(3) of the New York Convention (as it exists for Article II(2) since 2006). By all means, Switzerland should refrain from taking further action in this matter until such time as it is clear how the EU intends to proceed with the "arbitration exception" in the ongoing revision of Brussels I.
Larbitrage en droit public : un orphelin au sein de la LTF?
Authors: Mcgregor Eleanor
Published: April 2022

While arbitration has traditionally been considered as a means of resolving private disputes, it has gradually been gaining ground in the realm of public law. In the past twenty years, there have been examples of the use of domestic arbitration in disputes arising out of contracts involving expropriation, electricity supply or public transport. The trend is however ill-defined as case-law is scarce and legislation unclear. Amongst the concerns raised by the use of arbitration in public law, judicial review is of particular importance. In simple terms, what remedy procedure is to be used against an arbitral award rendered in Swiss public law? The question acquired special relevance with the entry into force on January 1st 2011 of the new Swiss Code of Civil Procedure, which appears to be ambivalent on this issue. The present article strives to find an answer to this question by addressing the various appeals available under Swiss law in the light of both constitutional obligations and standards of the European Court of Human Rights.
Rights and Obligations of Arbitrators in the Deliberations
Authors: Berger Bernhard
Published: April 2022

The ASA Swiss Arbitration Association's Annual Conference of 1 February 2013 in Zurich was devoted to the topic: "Inside the Black Box - How Arbitral Tribunals Operate and Reach their Decisions". This article derives from an introductory presentation that the author held at the said Conference. It analyses the legal framework of the deliberations. The author identifies and discusses a number of rights and duties of arbitrators that specifically arise at the stage of the deliberations, such as determining the process and timing of the deliberations, the right (and obligation) to participate in the deliberations, the (limited) right of the tribunal to seek assistance from other persons, and the (restricted) right to disclose a dissenting opinion. Moreover, the article analyses some of the general duties of arbitrators in the particular context of the deliberations, such as the duty of confidentiality, the duties of care, diligence and expedition, the obligation to apply the law, and the duties to be and remain impartial and independent.
Enforcement of Default Awards
Authors: Beffa Luca
Published: April 2022

It is not rare that Respondents decide not to participate in arbitration proceedings and that, thus, arbitral tribunals render so-called "default awards". For Claimants, enforcing such "default awards" is not always straight-forward.

Claimants have to make sure that the arbitration is conducted in a way that satisfies all the requirements of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("NYC"), and in particular the one of due process, but also that the law or the courts of the enforcing country do not reserve negative surprises.

This article gives a general overview of how national enforcing courts deal with "default awards", and provides some practical advice to Claimants seeking to enforce such awards.

Although a Claimant is in a rather favourable position when enforcing a "default award", in particular because the burden of proof regarding the violation of due process normally rests on Respondent and because national courts generally interpret the due process requirements quite narrowly, surprises are not excluded.

This is why Claimants should consider taking all the precautions they can, both prior, during and after the arbitration proceedings, in order to anticipate and/or effectively deal with potential or actual problems that may render useless all the efforts made to obtain a favourable award in the first place.
Arbitrator Consultants  Another Way to Deal with Technical or Commercial Challenges of Arbitrations
Authors: Baier Jonatan , Meyer Bernhard F.
Published: April 2022

International commercial arbitrations are often complex and of a technical nature. Ensuring that arbitral tribunals have, or acquire, the necessary technical or commercial know-how is a challenge - for the parties as well as for the arbitrators. The standard solutions (party- and/or court-appointed experts) are time-consuming, costly and often carry the risk of delegating decision-making powers to the experts.

Another way to ensure a technically or commercially sound and enforceable award is through the use of a consultant to the arbitral tribunal ("Arbitrator Consultant"). This tool was recently field-tested and successfully implemented in a major international energy price review arbitration in which the authors were involved. An Arbitrator Consultant is neither an expert, nor an arbitrator. Rather, he is a special assistant providing technical or commercial expertise to the arbitral tribunal "upon demand". He advises the arbitrators on limited technical or commercial language and/or calculation questions. However, he does not prepare an expert report, nor is he subject to cross-examination by counsel. The Arbitrator Consultant is, with the approval of the parties, an assistant in the sense that he helps to "translate" the arbitrator's decision into the particular technical or commercial language of a contract, or vice versa.
Protective Orders in International Arbitration
Authors: Perkins David
Published: April 2022

This article focuses on Protective Orders in international arbitration where the dispute involves intellectual property rights and high technology subject matter and requires a specific confidentiality regime. Such disputes commonly arise from Technology Transfer Agreements, Research & Development Agreements, and Patent & Know-How Licenses.

The subject matter in such disputes will, typically, involve not only disclosure of technically sensitive confidential documents, but also Product and/or Process Descriptions and site visits. Where, as is often the case, the parties compete in the same technical sector, mechanisms are required to find a balance between adequately protecting party confidentiality in such subject matter, while also providing sufficient disclosure to the counterparty, experts and the Arbitral Tribunal to facilitate the arbitral process.

This article outlines the Institutional Rules which provide the necessary mechanisms to achieve that balance and contains a sample Protective Order which may serve as a useful guide to those faced with resolving a procedural issue of this nature. It also focuses particularly on the WIPO Rules, which have been crafted specifically for disputes involving Intellectual Property Rights and other high technology subject matter.
Expert Determination in Turkey
Authors: Yesilirmak Ali
Published: April 2022

Expert determination is considered to be an evidence agreement under Turkish law. When the expert determination agreement is drafted as exclusive evidence agreement, no other evidence shall be submitted on the subject.

The economic growth in Turkey has paved the way for the realization of many infrastructure and energy projects as well as for many deals including mergers and acquisition transactions, construction agreements, intellectual property agreements. For dispute resolution in these projects and transactions, arbitration is generally preferred. This article suggests that along with arbitration expert determination should be used for effective dispute resolution in respect of technical matters. Expert determination is flexible, less expensive, faster, and responds to the needs of the parties to the projects and/or transactions.

This article examines the legal structure, case law and scholarly opinions in respect of expert determination in Turkey with a comparative perspective and makes recommendations for drafting and use of such mechanisms.
The 2015 ICC Expert Rules
Authors: Carlevaris Andrea , Nau Philine , Tümpel Hannah
Published: April 2022

International economic transactions are constantly growing and evolving. As a consequence, dispute resolution services must be prepared to respond to the new challenges and needs of the global market. With this in mind, the ICC Commission on Arbitration and ADR adopted new Expert Rules, under which the ICC Centre for ADR provides distinct services relating to experts and neutrals in numerous technical and legal areas. The three new sets of Expert Rules provide for proposal, appointment and case administration services respectively. The changes are also intended to bring the Expert Rules in line with the 2012 ICC Arbitration Rules and with the 2014 ICC Mediation Rules. In this article, the authors provide an overview of the new Rules, detailing the main changes that were introduced and how the Rules may interact with ICC Arbitration, Mediation, Dispute Board, and DOCDEX proceedings. The new Expert Rules make for ideal tools in various types of proceedings and at any stage thereof. As such, expert-related services are not only a great complement to amicable dispute resolution, arbitration and court proceedings, but can also serve as an autonomous dispute resolution tool.
Determining the Relevant Limitation Period for International Sales Contracts Before International Arbitral Tribunals
Authors: Huser Daniel
Published: April 2022

Various questions in respect to one of the most important and beneficial of legal institutions – as Friedrich Carl von Savigny described the law on limitation periods – are proving difficult to clarify in the preeminent method of settling disputes of international trade, namely in international arbitral proceedings.

First of all, evaluating the relevant limitation period for international sales contracts in international arbitral proceedings is still challenging because of the different classifications of the legal institution.

While the categories of “substantive” and “procedural” law as classification criteria are elusive per se; the very same division of legal rules is particularly vague in international arbitration, which is characterised by a multifaceted and complex interaction of different laws and rules. When classifying the legal institution, thus, the essay refrains from resorting to formal categories such as “substantive” and “procedural” law and rather examines the underlying rationale of the laws and rules governing international arbitration and their coherence with the objective of the law on limitation periods.

Even after the law on limitation periods has been properly classified and assigned to the adequate legal framework, difficulties remain to be solved when the arbitrators exercise their discretion in determining the applicable prescription regime. The essay shows that in the realm of international trade, rules of law directly derived from commercial usage and of an international nature such as the Limitation Convention or the UNIDROIT Principles may – in contrast to many national prescription regimes – ensure that the dispute is decided in accordance with the ideals of accuracy, efficiency and predictability, which inspire the international arbitral process. Since the virtue of this choice is the fact that it is free of the vagaries and arbitrariness of a national legal system, the outcome also coincides with the very nature of the law on limitation periods to create legal certitude by warding off delicate problems of evidence and stale proceedings.
Challenges of Swiss Arbitral Awards  Updated and Extended Statistical Data as of 2015
Authors: Dasser Felix , Wójtowicz Piotr
Published: April 2022

This article updates and extends previously published statistical data of challenges of international arbitral awards according to Article 190(2) PILA (current database: 1989 through 2015). Additionally, it covers for the first time requests for revision of international arbitral awards (1989 through 2015) and challenges of domestic arbitral awards pursuant to Article 389 et seqq. CCP (2011 through 2015).

Based on Article 190(2) PILA, 69 decisions have been rendered in 2014 and 2015 since the last update. The tally of challenges is now 502 decisions. The percentage of successful challenges in non-sports (mainly commercial) arbitration remains at around 7 %, while the data suggest a slightly higher chance of approx. 10 % of awards being set aside in sports arbitration. The median duration of the procedure before the Federal Court is roughly six months.

Since 1992, 23 published decisions on requests for revisions have been issued. Only two requests have been successful so far. The duration corresponds to the duration of challenges.

Finally, 52 decisions in domestic arbitration based on Article 393(a)-(f) CCP have been issued. About 20 % of all decisions concerned employment matters. The chance of success of a challenge is about 20 %.

That comparatively high number stems mainly from successful challenges based on arbitrariness, a ground for challenge that is only available in domestic arbitration proceedings. The median duration is roughly five months.
Abandon Ship? West Tankers, Gazprom, and Anti-Suit Injunctions under Brussels Ia
Authors: Sattler Maximilian
Published: April 2022

Anti-suit injunctions have long been a contentious issue under EU law. With its West Tankers decision, the European Court of Justice (ECJ) had held that anti-suit injunctions must not be issued by courts of EU member states if the injunctions would curtail the jurisdiction of the courts of other member states. This decision was problematic because it gave free rein to parties who sought to delay arbitration proceedings through “torpedo actions” at state courts.

The goal of the present article is to assess whether the ECJ’s conclusion from West Tankers still stands. Two developments give reason to doubt this: first, the ECJ’s decision in the matter Gazprom OAO v. Republic of Lithuania; second, the recast EU regulation on jurisdiction (“Brussels Ia”). The author assesses each in turn and concludes that EU law no longer prohibits anti-suit injunctions that aim at protecting arbitration agreements. Neither does EU law prohibit the recognition and enforcement of anti-suit awards issued by arbitral tribunals.
Transparency Rules and the Mauritius Convention: A Favourable Haircut of the States Sovereignty in Investment Arbitration?
Authors: Euler Dimitrij
Published: April 2022

This paper investigates whether the United Nations Commission on International Trade Law (UNCITRAL) Transparency Rules on treaty-based investor-state arbitration (Transparency Rules) increases transparency in investment arbitration fairly for all the participants. The hypothesis is that the Transparency Rules and the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (Mauritius Convention), work together as a mechanism that is more favourable for the host states than for the investor, and thereby anticipate the different roles of all participants in treaty-based arbitration.

Transparency brings pressure for a level playing field among disputing parties. In Detroit International Bridge Company v Government of Canada, UNCITRAL, PCA Case 2012-25, the tribunal accepted the prevalence of the in camera obligation in the procedural rules upon a general treaty obligation, and against the state’s arguments. In Philip Morris Asia Limited v The Commonwealth of Australia, UNCITRAL, PCA Case 2012-12, the tribunal accepted Australia’s need to disclose certain information under their national laws, but to exclude confidential business information as determined by the arbitral tribunal. Other decisions exist in which tribunals decide similarly.

This paper explores the actual principle of equality as applied by arbitral tribunals. Thereafter, it considers the legal nature of transparency under the Transparency Rules, standing alone and in combination with the Mauritius Convention. It concludes by determining how this discretion affects the level playing field of all the participants.
The New KCAB Rules
Authors: Minkkinen Marieke , Sippel Harald
Published: April 2022

Over the last decades, South Korea has progressed from one of the world’s poorest countries to one of the wealthiest nations in East Asia. Korea’s economy, among the largest worldwide, heavily depends on trade and exports form its backbone. In numerous cross-border deals, Korean companies and their foreign counterparts must decide on a cross-border dispute resolution mechanism. This calls for arbitration proceedings.

Although Korean companies have traditionally opted for arbitration before the world’s best-known arbitral institutions the Korean Commercial Arbitration Board (the “KCAB”) – Korea’s premier arbitral institution – has seen its caseload steadily increase over the last years. The 50 plus international cases that the KCAB administers every year put it among the more important arbitral institutions in Asia Pacific.

The KCAB celebrates its 50th anniversary in 2016 and new International Arbitration Rules (the “Rules”) entered into force on 1 June 2016. The Rules include several positive changes and innovations when compared with the previous version of the KCAB’s International Rules. Already prior to 1 June 2016 and in particular now, non-Korean companies should not panic in fear when their Korean counterparts suggest in a contract that “all disputes shall be finally settled by arbitration in accordance with the International Arbitration Rules of the Korean Commercial Arbitration Board”: as shown in this paper, the International Rules must be considered to be “on par” with that of other international arbitral institutions.
Arbitration of Trust Disputes
Authors: von Segesser Georg , Bell Katherine
Published: April 2022

Trusts instruments are nowadays widely used for commercial purposes. Although news coverage surrounding offshore leaks have had a negative impact on the public perception of trusts, this is but one very specific aspect of trusts and disregards the fact that trusts are used for many legitimate purposes and with full fiscal transparency. The article explains the characteristics of trusts and the fact that in recent years they have reached civil law legal systems and are no longer confined within their traditional borders of common law. The Hague Convention on the Law Applicable to Trusts and their Recognition has promoted an increased acceptance of trusts in many countries across civil law and common law jurisdictions.

Trust disputes broadly fall into three categories: (i) internal trust disputes, i.e. disputes with regard to the trust based on which the trustee holds the subject matter of the settlement; (ii) disputes between the trustee and the beneficiaries regarding e.g. a breach of trust by the trustee, the exercise of power by the trustee; and (iii) disputes with third parties who are not beneficiaries. Only the first two categories are dealt with in this article, as they create interesting and challenging issues to be addressed in arbitration proceedings. Such issues are, in particular, the effectiveness of arbitration clauses placed in the trust instrument which is typically only signed by the settlor. Other specific topics related to the arbitration of trust disputes are the arbitrability of trust matters, e.g. the dispute about information rights of a beneficiary or the application by the trustee pertaining to the interpretation of a trust provision, and the representation of beneficiaries in the proceedings including unascertained, unborn, minor or incapable beneficiaries. As trust disputes frequently involve complex legal and financial issues with connections to different countries and their laws, and with parties and assets in various jurisdictions, arbitration appears to be a viable method to resolve such disputes, in particular as it allows to concentrate the proceedings in one forum and provides for an individually structured process capable of dealing with the specific issues related to trust disputes.

The article refers to a number of trust laws and arbitration laws of different jurisdictions that address arbitration in the trust context, providing examples how the specific issues of trust arbitration can be dealt with.
The Arbitrators Liability and Immunity Under Swiss Law  Part II
Authors: Smahi Nadia
Published: April 2022

The question of the arbitrator’s liability and immunity under Swiss law is relevant to anyone who currently sits as an arbitrator in Switzerland or is planning on doing so. Part I of this article (published in ASA Bulletin 4/2016) introduced the matter and set forth the terminology used and the scope of study. After an analysis of the arbitrator’s status and of the nature of his mission, the author examined the arbitrator’s civil liability on the basis of the arbitrator’s contract. The topic of the arbitrator’s immunity in relation to his civil liability was then entered into through a brief comparative law analysis. Part II of this article analyzes the arbitrator’s immunity from his contractual liability under Swiss law, offers proposals for improvement and draws general conclusions from the study.
Individualarbeitsrechtliche Streitigkeiten im Schiedsverfahren
Authors: Casey Angela
Published: April 2022

In the last decade, arbitration as a mechanism for alternative dispute resolution has become increasingly important. Questions of arbitrability move to the forefront as arbitration expands to disputes whose commercial character might be less obvious. One recent question of interest is whether individual employment disputes can be the subject of arbitration proceedings in Switzerland. This paper identifies two areas of employment disputes which lend themselves to final resolution through arbitration. In particular, sports related and “executive”-employee disputes benefit from dispute resolution outside of state courts.

The well-known distinction between domestic and international arbitration proceedings seated in Switzerland has a profound impact on the subject matters that are considered to be arbitrable. Because Art. 177 of the Private International Law Act states that any dispute concerning a pecuniary interest may be the subject of an arbitration procedure, “international” parties desiring to arbitrate their dispute will rarely face an issue since almost all possible employment law claims are of a pecuniary interest to at least one party. On the other hand, the arbitrability of a domestic dispute is governed by Art. 354 Civil Procedure Code, which limits the scope of a potential arbitration procedure to any claim over which the parties may “freely dispose of”. The possibility of arbitration procedures regarding employment law disputes is therefore limited, since the Federal Supreme Court decided that an employee cannot “freely dispose of” all mandatory provisions enumerated in the Code of Obligations. This discrepancy is the main focus of this essay and will be explored in detail.
Economic crime in international arbitration
Authors: Betz Kathrin
Published: April 2022

In international investment and trade, arbitration is a frequently used mechanism to settle disputes between the parties. Economic crime such as corruption, money laundering or fraud may affect global investment and trade relationships in some way. If this is the case, arbitrators will be confronted with alleged or suspected criminal conduct.

Since the late 1980s, a number of international and regional conventions as well as ‘soft law’ have emerged to combat transnational economic crime that has a detrimental impact on the economy and society of states and distorts fair competition. The conventions and soft law provisions have been implemented by states in their domestic criminal law. Public international law as well as domestic criminal law are relevant in international arbitration in cases of alleged criminal conduct if the parties choose to apply them, or if they apply on a mandatory basis.

Criminal law defines the objective requirements of an offence that need to be proven by the evidence in detail. Arbitrators should identify and apply criminal law in cases where criminal conduct is suspected or alleged, and inquire into criminal allegations ex officio. Regarding evidence, arbitrators can rely on ‘red flags’ that are a form of circumstantial evidence, and draw adverse inferences from the non-production of requested evidence by the parties. If a party is able to produce prima facie evidence of criminal conduct, arbitrators can ask the defendant to produce rebuttal evidence. There is no need to apply a higher (or lower) standard of proof when assessing allegations of criminal conduct. The impact of proven criminal conduct on the outcome of the proceedings is different in investment and in commercial arbitration and depends on the circumstances of the case.
The New Qatari Arbitration Law: Convergence Towards Finding Rhythm in Inconsistent Drumbeats
Authors: Negm Mohamed H.
Published: April 2022

The new Qatari Arbitration Law is a long-anticipated piece of legislation which operates to repeal the handful of Articles (190 to 210) that had been contained within the Civil and Commercial Procedure Code and replaces it with a series of provisions that, by and large, emulate the scheme of the UNCITRAL Model Law. The Arbitration Law is permissive in nature, allowing the Parties freedom to determine the arbitration procedures.

The Arbitration Law provides a comprehensive framework for the arbitration process in Qatar. The Law achieves important reforms in a number of areas. It provides more clarity in relation to the nullification and enforcement of arbitral awards. It also empowers Qatar-seated arbitral tribunals to grant interim measures and preliminary orders. Further, it authorizes the Qatar Court of Appeal or Qatar Financial Centre’s Court of First instance to address all issues under the new Law requiring the assistance of the Qatar courts.

Most importantly, arbitral awards cannot be appealed on questions of fact or law under the new Arbitration Law; a positive development that will provide greater certainty to parties and keep sensitive matters relating to the nature of a dispute out of the local courts. Moreover, it is remarkable that under the Arbitration Law, several provisions have envisaged short and swift time bars for procedures either during the arbitral process or after rendering the award. Finally, the Arbitration Law limits liability for arbitrators in the course of the performance of their duties, save in circumstances of bad faith, collusion or gross negligence.
Investment Disputes and Article 139 of the Iranian Constitution
Authors: Soltanzadeh Sajad , Darzi-Naftchali Ali
Published: April 2022

With regard to the promotion and protection of foreign investment and the settlement of related disputes, the Islamic Republic of Iran (Iran) has enacted a special law entitled Foreign Investment Promotion and Protection Act (FIPPA) and has also signed more than 60 Investment Treaties, which refer investment disputes to international arbitration subject to certain conditions. On the other hand, Article 139 of the Constitution of Iran has conditioned referral to arbitration of disputes on public and state properties (including foreign investment) to the permission and approval of the Board of Ministers and the Parliament of Iran. These conflicting rules, apparently, create an uncertain legal environment for foreign investment in Iran.
Is Kazakhstan a State Successor to the USSR? A Perspective from Investment Treaty Arbitration
Authors: Huelmo Clàudia Baró
Published: April 2022

In its decision on jurisdiction, the arbitral tribunal in World Wide Minerals v. Republic of Kazakhstan held that Kazakhstan succeeded to the obligations of the Soviet Union with regards to its 1989 Agreement with Canada on the Promotion and Reciprocal Protection of Investments.

The aim of this article is to examine the potential legal reasoning by which the arbitral tribunal reached this conclusion. In order to do so, the rules of State succession, as partly codified in the 1978 Vienna Convention on Succession of States in respect of Treaties, are considered. Taking special note of the particularities of the case of the USSR, the specific circumstances of the dissolution of the Soviet Union are examined. In particular, the question of which (if any) obligations may have fallen upon Kazakhstan as a former Soviet Republic is explored.

The article concludes by suggesting which arguments may have been used by each of the parties with regards to State succession during the arbitral proceeding and why the Tribunal may have found the arguments proposed by the Claimant to be more persuasive.

As a result of this decision, the door could be opened for investors wishing to benefit from the protections included in bilateral investment treaties from the USSR-era, which had until now remained inactive or whose commitments had been honoured exclusively by the Russian Federation.
The New French Legislation on State Immunities from Enforcement
Authors: Malet-Deraedt Fleur
Published: April 2022

The French legislative changes on State immunities fromenforcement brought by the Loi Sapin II are a compromise between the protection of State property against illegal enforcement measures, in particular through the requirement for a prior judicial authorization for such measures, and the creditors’ right to the enforcement of their claims, as provided under the European Convention on Human Rights.

Creditors are now sheltered from the fluctuations in case law, as shown in particular in the NML and Commisimpex judicial sagas, but the drafting of appropriate waiver clauses remains crucial, particularly since these legislative changes have a considerable impact on the enforcement of international arbitration awards in France. Indeed, Section L.111-1-2 marks the end of the flexible approach allowed under the ruling by the Cour de cassation in Creighton, whereby waivers of immunity from enforcement could be tacitly inferred from the mere consent of the State to submit to arbitration.

Nevertheless, the Loi Sapin II, as it applies to sovereign immunity, is not a comprehensive set of rules, with only three new Sections incorporated in the Code of Civil Procedures of Enforcement, and therefore still leaves room for interpretation and further developments in French case law.
Praktische Aspekte des Vergleichs in Schiedsgerichtsverfahren
Authors: Nater-Bass Gabrielle
Published: April 2022

In order to terminate a pending arbitration proceeding by way of a settlement agreement, the parties can basically opt either for a ‘consent award’ (‘award on agreed terms’), or an ‘order for termination’. Under the ICC Rules of Arbitration or the LCIA Arbitration Rules, the parties have the additional possibility to simply inform the respective court that a settlement has been reached, whereupon the arbitral tribunal is discharged and the arbitration proceedings are concluded without any termination order issued. It is up to the parties to decide what best serves their interests. Provided that confidentiality is not a major concern, and enforceability is given priority, which will be the case where the settlement agreement provides for claims that fall due in the future, a consent award will answer these purposes best. While in national (Swiss) arbitration proceedings enforceability of a consent award can be fairly well secured by complying with Art. 33 of the Intercantonal Arbitration Convention, the situation is far more complex in international arbitration proceedings, not least so because the New York Convention of 1958 neither defines the term ‘arbitral award’ nor refers to ‘consent awards’. Gabrielle Nater-Bass, the author of the present article, has compiled the most important requirements to be observed for enhancing the chances that the settlement agreement can be enforced internationally. They are, among others, that the parties opt for a consent award; that the consent award is referred to as ‘award’; that the parties agree on unambiguous and transparent performance obligations; that the parties’ prayers for relief are repeated in the consent award; that a dispute still exists when the arbitral proceedings are initiated; and that the arbitral tribunal has jurisdiction over the subject matter of the settlement.
Ankara Anlaşması: Türkiye’den Birleşik Krallık’a Yeni Bir Politik Göç Akını Mı?
Authors: BİLECEN Tuncay
Published: April 2022

Birleşik Krallık, Türkiye’den gelen misafir işçiler bakımından Almanya kadar cazip bir ülke olmamıştır. Birleşik Krallık’ı göç açısından özgün kılan husus, 1970’li ve 1980’li yıllarda başlayan politik göçlerin varış noktalarından biri olmasıdır. Türkiye’den Birleşik Krallık’a yönelik “ikinci göç dalgası” ise 2002’den itibaren Ankara Anlaşması yoluyla başlamıştır. Birleşik Krallık’ta iş kurmak isteyen iş insanlarının yararlandığı bu vize türüyle oturum alanların sayısı özellikle son beş yılda katlanarak artmıştır. Bu olağanüstü artışın nedeni olarak politik çatışmalardan kaçınma isteği gösterilebilir. Demografik ve sosyo-ekonomik özelliklerine bakıldığında ise bu göç “beyaz yakalı göçü”, “orta sınıf göçü”, “beyin göçü” olarak tanımlanabilir. Bu çalışmada, yarı yapılandırılmış görüşmelerden ve “çatışma modeli”nden yararlanarak Türkiye’den Birleşik Krallık’a ikinci dalga göçlerin temelinde insanî güvenlik arayışının yattığını vurguluyorum. Bu bakımdan makaledeki iddiam; politik temelli çatışmalar, bu çatışmaların yol açtığı insanî güvensizlik veya bu çatışmalardan kaçınma isteğinin son yıllarda Türkiye’den Birleşik Krallık’a yönelik göçlerin temel nedenini oluşturduğudur.
DİSK’in Kuruluşundan 15-16 Haziran’a Fabrika İşgalleri Sendika Özgürlüğü Eylemlerinden DİSK’i Savunmaya
Authors: KAPLAN Meliha
Published: April 2022

Sendika özgürlüğü ve sendika seçme hakkı 1960’lı yıllardan bugüne çalışma hukukunun ve emek tarihinin önemli sorun alanlarından biri olmuştur. Sendika özgürlüğünün olmazsa olmaz koşullarından biri sendika çokluğu ilkesidir. Sendika çokluğu ilkesi, işçilerin özgürce istedikleri sendikayı seçme hakkını somutlayan temel ilkelerden biridir. 1961 Anayasası ve 1963 yasaları ile benimsenen sendika özgürlüğü ve sendika çokluğu ilkelerinin bir sonucu olarak her işkolunda birden fazla sendikanın kurulmuş olması bu sendikalardan hangisinin toplu iş sözleşmesi bağıtlayacağı sorununu doğurmuştur. 1960’lı yıllarda toplu iş sözleşmesi imzalamak sendikaların var olabilmesinin en önemli koşuludur. Sendikaların bir işyerinde toplu iş sözleşmesi imzalayabilmesi için yetkili sendika olma zorunluluğu ise sendikalar arasında rekabete neden olmuştur. 1967 yılında DİSK’in kurulmasıyla sendikalar arası rekabet yoğunlaşmış, işverenler DİSK üyesi sendikaların yetki almasını önlemek istemiş, rakip sendikalar da zaman zaman işverenlerle işbirliği içinde hareket etmiştir. İşçilerin iradesine rağmen farklı sendikalar yetkili olduklarını iddia etmiştir. Bunun sonucunda birçok fabrikada işçiler sendika seçme özgürlüğünü savunmak için radikal eylemler, işgaller yapmıştır. Bu bağlamda çalışmamızda bu yıllarda birçok farklı gerekçeyle yapılan fabrika işgalleri arasında örgütlenme ve sendika seçme hakkını özgürce kullanabilmek amacıyla yapılan işgaller incelenmiştir. Bu sendika savunma eylemleri 1970 yılında Sendikalar Kanunu’nda yapılmak istenen düzenlemelere karşı gerçekleşen 15-16 Haziran Direnişi’ne giden süreçle birlikte değerlendirilmiştir.
Genetic variability and multivariate studies on the grain physical properties of rice (Oryza sativa L.) landraces
Authors: Rani M.H. , Faruquee M. , Khanom M.S.R. , Begum S.N.
Published: April 2022

Thirty rice landraces were evaluated during the 2020 wet season for the estimation of the genetic variability of six grain physical properties, viz. grain length (GL), grain breadth (GB), milled grain length (MGL), milled grain breadth (MGB), milled grain length breadth ratio (MGL/MGB), and 1000-grain weight (TGW), at the Bangladesh Institute of Nuclear Agriculture Substation, Sunamganj, Bangladesh. The relative contribution of these traits to variability was estimated by using principal component analysis (PCA), and the landraces were clustered by using Mahalanobis distance (D2) statistics. The TGW and MGL/MGB ratio exhibited high estimates of the phenotypic coefficient of variation and genotypic coefficient of variation. The high broad-sense heritability and genetic advance of all the traits indicated that the environmental effect had a weak involvement in the expression of these traits. PCA revealed six principal components, among which two were significant and contributed up to 96.9% of the total variance cumulatively. GL, GB, MGL, and TGW contributed to PC1 to create the variation among the landraces, whereas MGL/MGB ratio, GL, and MGL contributed to PC2. The landraces were grouped into six clusters. Cluster analysis revealed that the maximum and minimum intracluster distances were found in cluster III (235.11) and cluster VI (0.00), respectively. The longest intercluster distance was found between clusters IV and VI, and the shortest distance was found between clusters I and III. The maximum mean values for GL and TGW were observed in cluster VI. The mean values for GB and MGB were highest in cluster V, whereas the MGL/MGB ratio and MGL were highest in cluster II. ‘Madhumala’/‘Sada Madhumala’ and ‘Pankhuraj’ could be used in hybridization programs to exploit maximum heterosis for rice grain size and shape and for the direct selection of superior quality traits because these traits are less affected by the environment than other traits.
Apakah Pencegahan Berdampak Terhadap Pelunasan Utang Pajak?
Authors: Ula Fina Rohmatul , Utami Gabriela Kunthi Putri , Siahaan Gideon Marcellino , Irawan Ferry
Published: April 2022

Taxes have a great contribution to sustainable development in Indonesia. However, efforts to collect such tax revenues may encounter obstacles in the form of collection arrears. For this reason, policy makers must be able to determine the most effective way for taxpayers to pay off their tax debts. This study aims to determine the impact of the selection of prevention efforts on tax revenue in collection activities. The data selection method used is literature study. The results of this study indicate that the preventive measures taken by the tax bailiff have an impact on the payment of tax debts owned by the tax insurer. Tax bailiffs must carry out a selectivity strategy in determining which tax insurers should be given preventive measures. It is hoped that all tax collection actions carried out by tax collectors will produce effective and efficient outcomes.
Pajak memiliki kontribusi yang besar untuk pembangunan berkelanjutan di Indonesia. Namun, upaya untuk mengumpulkan penerimaan pajak dimaksud dapat menemui kendala berupa tunggakan penagihan. Untuk itu, pembuat kebijakan harus dapat menentukan cara yang paling efektif agar para wajib pajak melunasi utang pajaknya. Penelitian ini bertujuan untuk mengetahui dampak pemilihan upaya pencegahan terhadap penerimaan pajak dalam kegiatan penagihan. Metode pemilihan data yang digunakan adalah kualitatif dengan pendekatan studi pustaka. Hasil penelitian ini menunjukan bahwa tindakan pencegahan yang dilakukan oleh jurusita pajak berdampak bagi pembayaran utang pajak yang dimiliki penanggung pajak. Jurusita pajak harus melakukan strategi selektivitas dalam menentukan penanggung pajak mana yang harus diberi tindakan pencegahan. Hal ini diharapkan supaya segala tindakan penagihan pajak yang dilakukan oleh jurusita pajak menghasilkan outcome yang efektif dan efisien.
Evaluation of several mathematical models for fitting the growth of the algae Dunaliella tertiolecta
Authors: Halmi M.I.E. , Shukor M.S. , Johari W.L.W. , Shukor M.Y.
Published: April 2022

Growth curves can be found in a variety of disciplines including fishery, agriculture, biology and biotechnology. Most living matter grows with successive lag, growth, and asymptotic phases and parameters associated with these phase can be used in predictive biology. In this work we studied the growth kinetics of the algae Dunaliella tertiolecta based on available published work in the literature using several growth models such as modified logistic, modified Gompertz, modified Richards, modified Schnute, Baranyi-Roberts, Von Bertalanffy, Huang and the Buchanan three-phase linear model. Statistical analysis based on RMSE, adjusted R2, Bias Factor (BF), Accuracy Factor (AF), Akaike Information Criterion (AIC) and F-test shows mixed results with the best models implied from the statistical analysis were the Baranyi-Roberts and modified Gompertz model. The Baranyi-Roberts model was chosen to fit the growth profile of the algae under various light intensity based on its mechanistically-inclined properties. The results obtained showed that the Âµmax rose steadily from 0.317 to 1.069 (day-1) whilst the lag time were negative in values at 10 and 20 lux light intensities and steadily increased to 1.189 days at 60 lux light intensity. The results from this work can be used in the further optimization works of this alga in the future.
Asymbiotic Germination and Seedling Development of Dimorphics lowii (Orchidaceae)
Authors: Bakar Birhalawati , Latip Mariam Abdul , Gansau Jualang Azlan
Published: April 2022

Dimorphorchis lowii, a threatened Borneo endemic epiphytic orchid, is gradually becoming rare due to over collecting and habitat disturbance. Therefore this study was carried out to obtain in vitro propagation through asymbiotic seed germination and seedling development by optimizing capsule maturity, nutrients requirements and light conditions before introduce back to its natural habitat for conservation purposes. Capsules were collected at 100, 150 and 170 days through hand-pollination. The seeds were germinated on Murashige and Skoog (MS), Knudson C (KC) and Vacin and Went (VW) media added with 10% additives (coconut water, potato homogenate and tomato juice) under light and dark conditions. Seeds from 150 days old capsule grow on VW medium added with potato homogenate under light condition were observed to be an optimum condition with higher germination percentage as compare to other treatments. Seeds started to germinate by swollen of embryo (8 days) before the testa were ruptured at 23 days and further developed into mature protocorm at 33 days. Seeds with 4 leaves and 5 roots were ready for hardening process within 200 days. A successful developed system for in vitro propagation will contribute to the development of a sustainable management program for D. lowii in Sabah, Malaysia.
Statistical Diagnosis Test of the Growth Kinetics Model for the Algae Dunaliella tertiolecta
Authors: Shukor M.S. , Shukor M.Y.
Published: April 2022

Mathematical modeling of physical, chemical or biological data could help the investigator toexplain a phenomenon observed based on physical, chemical or biological mechanisms. Themodel could also be used to predict or forecast future behavior, simulate a hypothetical event orinput and design better experiments. Previously, we demonstrated that the Baranyi-Robertsgrowth kinetics is the best model using the ordinary least squares method for the growth of thealgae Dunaliella tertiolecta compared to other models such as modified logistic, modifiedGompertz, modified Richards, modified Schnute, Baranyi-Roberts, Von Bertalanffy, Huangand the Buchanan three-phase linear model. The ordinary least squares method relies heavily onseveral important assumptions such as residuals conformation to normal distribution, does nothave outliers, is truly random, of equal variance (homoscedastic) and does not showautocorrelation. If all of these assumptions are satisfied, the test is said to be robust. In thiswork we perform statistical diagnosis test for the adequacy of the model to satisfy theserequirements.
An Iron Determination Method for Azo Dyes-Contaminated Wastewater
Authors: Shukor M.Y. , Syed Mohd Arif . , Raslan S.A. , Ithnin K. , Shamaan N.A. , Syed M.A.
Published: April 2022

We have designed an improved iron determination method based on the ability of ferrous iron to reduce 12-molybdophosphate (12-MP). The method allows for direct determination of ferrous iron in the presence of azo dyes. The iron determination method had a specific extinction coefficient of 0.0514 (mg l-)-1.cm-1 at 865 nm with a correlation coefficient of 0.999. The relative standard deviation for each data point does not exceed 5% (n=3) suggesting precision. In its oxidized state 12-MP is yellowish in color and when reduced it forms a blue solution. The iron determination method is less interfered with azo dyes compared to common iron determination methods such as 1,10-phenanthroline and the commercial FerreMoTM.