bluuebunny/crossref_metadata_2025_split huggingface dataset:
Other Forms of Arbitration and the Future of Arbitration in Korea
Authors: Kim Joongi 
Published: June 2017

Abstract
This chapter looks at other forms of arbitration and reflects on the future of arbitration in Korea. In addition to commercial arbitration, other forms of arbitration, particularly investment treaty arbitration, are becoming increasingly important for Korean parties, practitioners, and researchers. Recent efforts to establish a dispute-resolution process through a similar framework between North and South Korea are also discussed. The chapter shows the joint contributions of both sides toward the South–North arbitration efforts. Finally, the chapter notes that while in many regards the future of arbitration in Korea looks bright, despite this outlook, there are still challenges yet to overcome.
Other Actors in the Mining Industry
Authors: Burnett Henry G , Bret Louis-Alexis 
Published: June 2017

Abstract
This chapter focuses on players other than Host States and mining companies in the mining industry. These include prospectors, geologists, mining engineers, metallurgical engineers, trading houses, smelters, assayers, and investment banks. Prospectors play an important role in generating showings (evidence of localized mineralization), which are later optioned, acquired, or explored by mining companies. Geologists specialize in exploring and identifying new mines. Mining engineers specialize in mine design while metallurgical engineers devise and design the processes and physical installations necessary to process raw ore into refined metals or minerals. Most mining companies do not market or sell their production, relying instead on trading houses to buy their output, or selling it to large industrial users under long-term supply and purchase agreements. Smelters process the ore mined into refined metals. Assayers perform the chemical and metallurgical tests on samples of ores or minerals to determine the amount of valuable metals contained. Investment banks arrange the financing for mining projects. These different actors and activities entail specific risks and varying potential for international disputes.
Exploration Agreements and Exploration Disputes
Authors: Burnett Henry G , Bret Louis-Alexis 
Published: June 2017

Abstract
This chapter discusses the three main types of mining agreements that define the legal framework for the exploration of a mining project: exploration agreements (often referred to as option agreements), mining leases, and concession agreements. Exploration agreements refer to contracts between parties wishing to explore the mineral potential of a particular property and the holders of mineral rights over that property. Mining leases typically grant the lessee the exclusive right to conduct exploration, development, mining, and reclamation on, in, or under certain properties; or, they may convey exclusive possession over certain properties for the purpose of conducting exploration, development, mining, and reclamation activities. Mineral concessions are granted by the State to private individuals or companies to explore and exploit mineral resources on or under a designated area. These types of agreements come with different risk profiles and potential for international disputes to arise.
Financing Disputes
Authors: Burnett Henry G , Bret Louis-Alexis 
Published: June 2017

Abstract
This chapter discusses the three main types of financing for mining projects and their respective potential for international disputes. These main forms of financing are: equity financing, debt financing, and alternative forms of financing such as royalty financing and stream financing. Equity financing is the most widespread form of financing. It is particularly popular with junior mining companies that do not have the possibility to tap debt markets. Debt financing is often used by mid-tier and major mining companies seeking to develop new projects or expand their operations. Amongst the different forms of debt financing available to mining companies, project finance is the most widely-used for international mining projects. Alternative forms of financing (including royalty financing and stream financing) have emerged over the past thirty years as a viable alternative to equity and debt.
Mining Development, Operating, and Commercial Disputes
Authors: Burnett Henry G , Bret Louis-Alexis 
Published: June 2017

Abstract
This chapter examines the most common types of disputes arising in connection with the development and operations of mining projects. These can be classified into two main categories: development and operating disputes, and offtake and sales disputes. Development and operating disputes include: disputes that may arise when the project owner and external mining contractor fail to agree on rates; hardrock drilling disputes arising from various geographic, geologic, and practical factors; and construction contract disputes. Offtake agreements or offtake contracts refer to all types of agreements for the sale and purchase of metals/minerals, including spot sales, metal streaming agreements, and in-kind mineral royalties. The most common types of disputes involve four essential aspects of the sale of metals and minerals: the quantity to be delivered; the quality of the metals/minerals delivered; the conditions of the delivery; and the payment of a price by the buyer.
The Impact of Anti-corruption Legislation and Trade Sanctions
Authors: Burnett Henry G , Bret Louis-Alexis 
Published: June 2017

Abstract
This chapter examines disputes involving allegations of corruption, violation of trade sanctions, and other forms of misconduct in the mining industry. It identifies the factors that explain the mining sector’s particular vulnerability to corruption. It then discusses the main national anti-corruption regimes, including the U.S. Foreign Corrupt Practices Act (1977), the Organization of American States’ (OAS) Inter-American Convention against Corruption (1997), the OECD Convention on Combating Bribery of Foreign Officials in International Business Transactions (1999) and United Nations International Convention against Corruption (2005), Canada Corruption of Foreign Public Officials Act (1999, 2013), and UK Bribery Act (2011). The remainder of the chapter covers the impact of allegations of corruption in commercial and investor-State arbitration proceedings; and examines how US trade sanctions and export controls regulations can play a significant role in the context of international mining disputes.
Selection of Counsel and Arbitrators
Authors: Burnett Henry G , Bret Louis-Alexis 
Published: June 2017

Abstract
This chapter discusses the selection of counsel and arbitrators for international mining disputes. The selection of lawyers is crucial because they will be drafting pleadings, presenting evidence, cross-examining the other side’s fact and expert witnesses, and pulling together complex factual matrices in order to persuade the arbitrators to rule in the client’s favor. The arbitrator must also be chosen with extreme care and diligence. Although the arbitrator is not required to be a lawyer, in cases to be decided by a sole arbitrator, it is wise to select a lawyer because the sole arbitrator will be handling all aspects of the arbitration, including making procedural rulings, ruling on potential interim measures applications, and the like. With respect to a three-arbitrator tribunal, each side usually has the ability to nominate its own arbitrator and the two co-arbitrators select the Chairman, if possible. The final section of the chapter deals with forum selection in international disputes.
Principles of Investment Protection in International Mining Disputes
Authors: Burnett Henry G , Bret Louis-Alexis 
Published: June 2017

Abstract
In an effort to attract foreign investment many countries, especially developing economies, have created favorable investment conditions by setting up domestic and international guarantees for foreign investors. In addition to adopting foreign investment laws, many countries have concluded bilateral and multilateral investment treaties aimed at promoting and protecting foreign investment. These treaties provide a number of guarantees concerning foreign investment, which typically include the protection from expropriation; fair and equitable treatment (FET); full protection and security; the protection against arbitrary or discriminatory measures, national treatment, and most favored nation treatment; and, for some of them the observance of other undertakings entered into by contracting States with investors. This chapter examines each of these guarantees as well as the means to maximize investment protection and secure access to international arbitration.
Introduction
Authors: Goldby Miriam , Mistelis Loukas 
Published: June 2017

Abstract
This volume contains revised, updated, and enhanced versions of papers delivered during the inaugural International Shipping Law Roundtable on arbitration of shipping disputes organized by Centre of Commercial Law Studies, Queen Mary University of London. The collective sentiment has been that there has been rather limited academic discourse of issues relating to the current development of shipping law and the role of arbitration. This has been an excellent opportunity to bring together leading scholars and practitioners from around the world to debate and test ideas in the presentations, which formed the basis of the contributions contained in this volume. An overview of the subsequent chapters is presented.
Enforceability of ‘Spontaneous Law’ in England
Authors: Goldby Miriam 
Published: June 2017

Abstract
This chapter analyses the process of rule-making in the maritime transport industry. It uses the term ‘spontaneous law’ to refer to norms that emerge as a result of regular and repeated interactions among participants in shipping networks, interactions that create common understandings as to how contractual obligations undertaken are to be performed. The rule-making activity results in a combination of articulated or expressed rules that are enforceable directly as a result of the formation of a valid and binding contract; and unexpressed (or implicit) understandings that form part of the contractual context and that supplement the expressed rules. The context within which these unarticulated rules come into existence is a commercial network of contractual relationships. The chapter engages with the pragmatic question of how and to what extent these unarticulated rules will be enforced by the courts in the resolution of a dispute, focusing on the courts of England and Wales.
Spontaneous Standardization and the New Lex Maritima
Authors: Druzin Bryan H 
Published: June 2017

Abstract
This chapter examines the processes whereby shipping law may converge internationally in the absence of state intervention. It outlines a theory explaining such convergence through the operation of network effects. The theory is based on the argument that because legal standards are instruments that facilitate interaction with a larger group, the inherent value of a legal standard as a means to that end increases with the number of other people who also subscribe to and employ the same legal standard. Therefore, a particular standard emerges as the dominant standard as it becomes more widely used for such interactions, and the number of people adopting it in turn also increases. The chapter argues that shipping law is especially susceptible to network effects because it exhibits particularly high levels of interaction across the globe. These effects therefore form a good explanation for standardization of shipping norms.
Standardization Theory and the Limits of its Applicability
Authors: Georgosouli Andromachi 
Published: June 2017

Abstract
This chapter evaluates the theory of spontaneous legal standardization proposed in Chapter 4, which tries to answer the following question: Without a central legislative authority, how will international commercial law, for example shipping law, be standardized? The two key merits of Chapter 4’s thesis are, on the one hand, it is inter-disciplinary in nature and, on the other hand, the fact that the implications of the thesis go beyond commercial law and shipping law. However, this theoretical framework also suffers from three major flaws. The first one concerns the nature of the question that it tries to answer; the second concerns the nature of the theory of spontaneous legal standardization that Chapter 4 puts forward; the third concerns several assumptions that seem to be embedded into the network externalities theory as an explanandum of the phenomenon of spontaneous legal standardization (rather than as a normative theory).
Incorporation of a Charterparty Arbitration Clause into a Bill of Lading and its Effect on Third Parties
Authors: Baatz Yvonne 
Published: June 2017

Abstract
This chapter discusses the practice of incorporating charterparty arbitration clauses into bills of lading and examines recent decisions of the English courts which have tended to take a flexible and liberal approach in determining the effectiveness of such incorporation. It notes that a restrictive approach to the recognition of the validity of such arbitration clauses results in a highly uncertain position for a carrier who may find itself having to arbitrate in different locations to respond to different claims arising out of the same incident. It also criticizes the European Court of Justice’s decision in Allianz SpA (formerly RiunioneAdriatica di SicurtaSpA) v West Tankers Inc (The Front Comor). The case has created the potential of much confusion on the enforceability of a charterparty arbitration clause incorporated into a bill of lading, and creates unnecessary unpredictability and the heightened potential of litigation costs to determine preliminary issues.
Competition of Arbitral Seats in Attracting International Maritime Arbitration Disputes
Authors: Mistelis Loukas 
Published: June 2017

Abstract
This chapter examines the competition among arbitral seats in attracting maritime disputes. It first explores why certain seats are selected as a matter of general arbitration law and practice. It then discusses some key arbitral seats for the settlement of maritime disputes. It shows that there is a large concentration of cases in certain centres, where a number of well-known arbitral associations are established and the local courts and local laws are prepared to support the process. Although the key maritime arbitration centres do not necessarily coincide with the main commercial arbitration centres (with the exception of London, New York, and Singapore), the criteria for selection of key seats in maritime arbitration appear to be the same those used in commercial arbitration. The high number of maritime arbitration cases in the main maritime arbitration seats has also contributed to the development of arbitration law and jurisprudence in these jurisdictions.
Maritime Arbitration in London
Authors: Gaunt Ian 
Published: June 2017

Abstract
This chapter examines what makes London so popular as a maritime arbitration centre. Chief among the reasons is the availability of a pool of arbitrators with a breadth of professional knowledge and experience, including not just lawyers but commercial men and women. It also discusses the perceived effect of the use of arbitration on the development of English law. On the one hand, the number of appeals going to the courts is such as to ensure that new precedents are produced in order to lend vibrancy to the law. On the other hand, some first instance decisions have shown a tendency on the part of judges to decide cases without sufficient sensitivity to commercial practice, leading to precedents that are hard for arbitrators to apply. The chapter also considers the major challenges faced by the London Maritime Arbitrators Association in maintaining London as the foremost centre for the resolution of shipping disputes.
Common Types of Shipping Arbitration
Authors: Chan Leng Sun 
Published: June 2017

Abstract
This chapter reflects on developments in maritime arbitration in Singapore, highlighting its distinctive features via a comparison with London, the shipping world’s preferred arbitration centre. In Singapore, the Arbitration Act (Cap 10, 2002 Rev Ed) governs domestic arbitration whereas the International Arbitration Act (Cap 143A, 2002 Rev Ed) (the ‘IAA’) governs international arbitration. The IAA gives the force of law to the UNCITRAL Model Law 1985 and the New York Convention on the Reciprocal Recognition and Enforcement of Foreign Arbitral Awards. Singapore offers the possibility to arbitrate under the institutional rules of either the Singapore Chamber of Maritime Arbitration (SCMA) or the Singapore International Arbitration Centre (SIAC). The SIAC provides institutional services, including the appointment of arbitrators. The SCMA was in recent years taken outside the structure of the SIAC to provide a service more comparable to that provided by the London Maritime Arbitrators Association (LMAA).
Authors: Calliess Gralf-​Peter , Klopp Annika 
Published: June 2017

Abstract
This chapter presents empirical data on the vanishing commercial trial and the flight to arbitration in general, and more specifically in the maritime industry. It discusses the consequences of the trend towards the privatization of dispute resolution for the maintenance of law in more detail. In response to the fading of domestic law, which results from a lack of litigation, it considers whether or not arbitral precedent might fill in the gap. It analyses London Maritime Arbitrators Association (LMAA) and Society of Maritime Arbitrators (SMA) awards published in 2014 for their potential as precedent. It shows that it is quite difficult to infer any ratio decidendi from them. Thus, the viewpoint expressed here is sceptical about the privatization of the maintenance of maritime law, be that domestic shipping law or a transnational lex maritima. Finally, the chapter considers options for private and public actors to secure the continued development of shipping law.
Transnational Shipping Law
Authors: Maurer Andreas 
Published: June 2017

Abstract
This chapter develops a threefold argument. First, using empirical data it shows the maritime industry’s move away from litigation and towards arbitration. Second, it argues that private actors play a major role in the development of substantial rules of international shipping by the means of standard contracts. Since these contracts do not only result from a unilateral imposition of the terms by one party on the other but from participative procedures that involve many stakeholders, these rules are not only general terms and conditions, they can claim normativity for themselves and thus are a first step in the emergence of a transnational maritime law. Finally, the chapter argues that arbitrators should view themselves as participants in the development of an emerging transnational maritime law. Preconditions for this development are the publication of arbitral awards and mutual observation of arbitrators, allowing a factually binding persuasive precedent to emerge.
The Role of Standard Forms and Arbitrators
Authors: Ambrose Clare 
Published: June 2017

Abstract
This chapter reflects on the findings and conclusions in Chapter 14. It points out various factors that have given shape to the kind of arbitration service favoured today, including the desideratum of confidentiality that drives a number of disputants to choose arbitration over litigation in the courts. In view of the fact that standard forms tend to be simply a neutral starting point for negotiation rather than unchanging legal rules, and there is a tendency for disputes to be decided by arbitrators against a backdrop of domestic law, from a practical perspective it is unproductive to focus on whether and to what extent there might be a substantive transnational shipping law and what the arbitrator’s role may be in this regard. Having said that, the chapter argues for the publication of more arbitral awards and the need to ensure that arbitral awards acquire transnational legitimacy.
The Role of Arbitrators and the Possibility of a Genuine Arbitral Case Law
Authors: Cachard Olivier 
Published: June 2017

Abstract
This chapter uses maritime arbitration in Paris as a case study to discuss the possibility of a genuine arbitral case law. This possibility derives from the arbitrator being uniquely placed, in view of his or her legal and methodological freedom, to conduct ‘the free objective search for a rule’. The first section underlines that an arbitrator or an arbitral panel is in the best position to carry out this free objective search for a rule. The second section investigates whether an arbitrator is just adjudicating a peculiar dispute or if, in doing so, his findings may reach further authority. It then discusses the legal grounds given to the award. The third section focuses further on the characteristics of maritime disputes and tries to sort out how a balance between private and public interests is met. It also examines how the market arbitrators consider standard terms.
The Importance of Commercial Knowledge in Maritime Arbitration
Authors: Kimball John D 
Published: June 2017

Abstract
This chapter argues that maritime arbitration is still a viable concept for ship owners, charterers, shippers, or buyers of commodities despite issues such as rising arbitration costs; the non-applicability of the American Rule with regard to the payment of fees; and the absence of any right to appeal, evidentiary rules, or pre-hearing disclosures. It goes on to examine the advantages arbitration over litigation, and their peculiar weight and relevance in the shipping field, especially the opportunity to have one’s case decided by arbitrators with strong commercial knowledge and experience and who therefore understand the commercial context of the dispute they are being asked to resolve. The chapter illustrates this advantage by reference to a number of recent cases decided by arbitral tribunals in New York, emphasizing that it is mainly this expertise which gives arbitration the edge over the courts.
Dispute Resolution in the Maritime World
Authors: Lux Jonathan 
Published: June 2017

Abstract
This chapter reflects on the growing influence of mediation, the features of which may provide a source of inspiration for arbitration to evolve. It argues that arbitrators have the power to stay the arbitration so as to offer a ‘mediation window’. It follows that, in exercising their discretion on costs, arbitrators should be entitled to ‘sanction’ the successful party and deprive him of some or all of his costs by reason of his failure to engage with a mediation proposal and/or refusal to mediate. Of course the London Maritime Arbitrators Association (LMAA) can put the matter beyond doubt by amending its Rules to provide expressly for such powers. Doing so will ensure that London remains the leading international dispute resolution centre for many years to come.
Introduction
Authors: Parra Antonio R 
Published: June 2017

Abstract
This introductory chapter provides brief descriptions of the World Bank Group of intergovernmental organizations, including the International Centre for Settlement of Investment Disputes itself, as of June 30, 2010 (the end of the organizations’ 2010 fiscal year). It covers the International Bank for Reconstruction and Development, the International Finance Corporation, International Development Association and Multilateral Investment Guarantee Agency and the International Centre for Settlement of Investment Disputes. An overview of the subsequent chapters is also presented.
The Preliminary Draft of the Convention
Authors: Parra Antonio R 
Published: June 2017

Abstract
This chapter provides a detailed, stage-by-stage narrative of the drawing up of the text of the Convention between 1962 and 1965. It describes the Preliminary Draft, focusing on the main differences between it and the Working Paper. It also reviews the sources or antecedents for the Preliminary Draft (and the Working Paper before it). The chapter then turns to the discussions at the regional consultative meetings.