bluuebunny/crossref_metadata_2025_split huggingface dataset:
Judicial Intervention in International Commercial Arbitration: Implications and Recent Developments from the Indian Perspective
Authors: Thadikkaran Manu 
Published: March 2022

The rules of arbitration ensure party autonomy, especially in international commercial transactions. However, the efficiency of the technique would be hampered if concurrent authority is conferred on the judiciary over arbitral proceedings. The scenario in India is notable in this aspect. The attitude of scepticism reflected in India, a developing country, towards an alternate dispute settlement mechanism such as arbitration may be attributed to its inexperience as well as its history. In India, the exercise of concurrent authority by the judiciary is evident from the judgments of Bhatia International and Venture Global. The law laid down by the Supreme Court in these judgments interprets the Arbitration and Conciliation Act in a manner contrary to the spirit of the UNCITRAL Model Law, and has received wide criticism from the global business community. Subsequently, however, as a means of damage control, the Indian judiciary interpreted arbitration agreements giving importance to the seat of arbitration to prevent judicial intervention. The 'seat theory', which is internationally accepted in the arena of arbitration, giving the judiciary of the place of the seat of arbitration the authority to intervene and set aside arbitral awards, was accepted and adopted by the Indian legal system indirectly. However, the question remains as to the effectiveness of this attempt by the Indian judiciary in containing the effects of this position of law on the Indian economy. However, the reasoning of the Bhatia judgment was justified in its circumstances. Matters regarding interim measures and collection of evidence can be enforced effectively by the judiciary of the place of the subject matter of arbitration. With regard to these limited aspects, all judiciaries must be granted the authority over arbitral proceedings to ensure efficient enforcement of awards. Hence, necessary legislative amendments, along with support from the judiciary, are essential for India to adopt a pro-arbitration regime.
Tidewater v. Venezuela: Property Rights Capable of Expropriation in a Company Operating under Short-Term Contracts
Authors: Cueto José Ignacio García , Pagani Felipe Nazar 
Published: March 2022

Despite operating for more than fifty years in the Venezuelan market, Tidewater Marine, C.A. (SEMARCA) did not have a permanent concession contract with Petróleos de Venezuela S.A. (PDVSA) or any of its subsidiaries. Instead, SEMARCA operated on the basis of short-term contracts that were periodically extended. This did not prevent an ICSID tribunal (hereinafter ‘the Tribunal’) from finding that SEMARCA was a going concern operating an open-ended business, which was expropriated by the Bolivarian Republic of Venezuela (hereinafter ‘Venezuela’ or ‘the Respondent’). The Tribunal awarded two Barbadian subsidiaries of Tidewater (hereinafter ‘the Claimants’) damages up to the amount of USD 46.4 million. The main issues dealt with in the case are: (i) the existence of property rights capable of expropriation; (ii) the legality of an expropriation where proper compensation was not afforded to the investor at the time of the measures or shortly thereafter; (iii) whether outstanding accounts receivable should be included when valuing an expropriated company; and (iv) whether political risk should be considered when calculating the country risk premium. The Award contained two critical holdings: (i) the fact that a company operates under short-term contracts does not impact whether property rights capable of expropriation exist; and (ii) a failure to pay prompt compensation and/or to offer compensation in a sufficient amount does not, on its own, render the expropriation unlawful.
Settling Disputes in the Nigerian Banking Sector: Why Not Arbitration?
Authors: Ifebunandu Joseph C. 
Published: March 2022

In every economy, it is commonly accepted that the financial health and stability of its banking sector is a key indicator of that economy’s performance. As a result, the volume of banking transactions is bound to rise with increased economic activities. With increased foreign direct investment in Nigeria and the Central Bank of Nigeria (CBN) consolidation exercise of 2005, Nigerian banks have achieved increased transactional capacity within the past decade. A primary result of these increased economic and banking activities is a similar increase in disputes arising from banking transactions and activities, ranging from retail banking disputes to those arising from specialized products. For all stakeholders in growing economies (particularly foreign investors), an effective and prompt mode of dispute resolution has a high impact on the sustainable growth of such economies. This article analyses the current dispute resolution trends in the Nigerian banking sector as well as key considerations for banks in using arbitration as a dispute resolution mechanism. It also assesses major challenges that banks may face, with likely mitigations. Finally, it discusses the need for the further development of arbitration as an effective option for resolving banking disputes in Nigeria.
Challenge Decisions at the Danish Institute of Arbitration
Authors: Pihlblad Steffen , Tufte-Kristensen Johan 
Published: March 2022

Arbitral institutions make regular decisions on the required impartiality, independence and qualifications of arbitrators. The decisions and their underlying analyses are rarely available to the public. Therefore, the arbitration community is missing a valuable source of clarification and analysis, and a poor clarification and analysis may ultimately lead to untenable appointments and unfounded challenges. The article and the following decision summaries explain how the Danish Institute of Arbitration approaches the challenge of arbitrators. The article is inspired by the arbitrator challenge digest published by the London Court of International Arbitration a few years ago, but the approach by the Danish Institute of Arbitration is unique in a number of ways. The Institute’s approach reflects a delicate balance between efficiency, flexibility, party autonomy and due process. Based on the fifty-seven challenge decisions outlined below, the article explains how the Institute aims at finding the right balance in a number of different circumstances. The article thereby provides a tool for in-house attorneys, external counsel, arbitrators, institutional staff and other arbitration practitioners to make the right arguments and proper analyses when dealing with issues concerning the challenge of arbitrators.
Think Quality Not Quantity: Repeat Appointments and Arbitrator Challenges
Authors: Koh Will Sheng Wilson 
Published: March 2022

Repeat appointments of an arbitrator by the same counsel or party are not uncommon in arbitration, with some even claiming that an ‘inner mafia’ decide the majority of cases. Whether this poses a problem for arbitrator independence or impartiality has been described as ‘highly controversial’. The 2014 IBA Guidelines on Conflicts of Interest expressly identifies repeat appointments as an Orange List circumstance providing possible grounds for challenge, but this has been described by commentators such as Gary Born as ‘poorly-considered’ and ‘relatively extreme’. This article suggests that reports of systemic favouritism have been exaggerated and numerical limits on repeat appointments should be rejected. I begin by outlining in section 2 the two contrasting approaches that authorities faced with such challenges have adopted: a quantitative approach and a qualitative approach. Section 3 examines the legal standards that parties typically subscribe to and argues that they cannot and should not be interpreted to favour the quantitative approach. Section 4 scrutinizes the main reasoning processes that allegedly link repeat appointments to an appearance of bias and suggests that they rely on untenable generalizations. Finally, section 5 assesses the quantitative approach from its impact on party autonomy. I suggest that respecting party autonomy means that the quantitative approach must not be adopted except where parties have explicitly agreed so.
American and European Perspectives on Arbitration Agreements in Online Consumer Contracts
Authors: Mania Karolina 
Published: March 2022

This article offers a discussion of systemic differences between the American and European approach to the application of arbitration clauses in contracts between consumers and enterprises (businesses) included in the digital environment. The first section features a summary of the relevant US regulations and jurisprudence, with special emphasis on judgments of the Supreme Court concerning arbitration as used in online consumer contracts. An analogous analysis is then offered, as part of a legal comparative study, of solutions applied in the European Union. The discussion is accompanied by the author’s suggested reasons for the differences found, while pointing to some of the most recent proposals of legislative changes from the European Commission.
A Challenger Approaches: An Assessment of the Prague Rules on the Efficient Conduct of Proceedings in International Arbitration
Authors: Duggal Kabir A.N. , Rangachari Rekha 
Published: March 2022

It is no secret that some lawyers, and perhaps civil law lawyers in particular, have felt frustration with the status quo of the evidentiary processes of international arbitration, premised primarily on the International Bar Association (IBA) Rules on Taking of Evidence in International Arbitration (‘IBA Rules’). This outcry was vocalized at the Russian Arbitration Association’s Conference held in Moscow in April 2017, which ultimately contributed to the formation of a Working Group that developed the Rules on the Efficient Conduct of Proceedings in International Arbitration (‘Prague Rules’). This article strives to elucidate the mechanics of the Prague Rules. An understanding of these new provisions, however, cannot be achieved in a vacuum; as such, much of the analysis will touch upon the IBA Rules and their relationship to the Prague Rules. This article provides a critical, comparative analysis of the Prague Rules.
Evidence, International Arbitration, Prague Rules, IBA Rules, Witness Testimony, Cross Examination, Adverse inferences, Document Production, Civil Law, Common Law
Technology and the Changing Face of Justice
Authors: Menon Sundaresh 
Published: March 2022

The problem of unequal access to justice, also known as the justice gap, has been worsened by rising levels of inequality over the past half-century. The denial of due compensation and the inability to enforce rights in turn perpetuates and widens the wealth gap, initiating an ever-deepening spiral of inequality that threatens social cohesion and erodes public confidence in the courts. By empowering individuals, organizations and governments, technology and peaceable methods of dispute settlement have the potential to close each dimension of the justice gap and address the large volume of unmet justice needs that do not surface before the justice system. These unmet needs are generally straightforward but require urgent resolution, and therefore require quick and affordable solutions that focus on amicable settlement. In thinking about how we can redesign our justice system to promote solutions of this nature, we need a broader vision of justice: one that seeks to produce just outcomes through practical and proportionate means, and that aspires not merely towards keeping the peace but also building lasting peace. In this manner, our justice system will better promote effective equal access to justice, restore and strengthen communities that are riven by conflict, and help to tilt an unequal society closer towards equilibrium.
Technology, Peacebuilding, Inequality, Access to justice, Proportionality, Online courts, Asynchronous hearings, Multi-door courthouse, Alternative dispute resolution (ADR), Mediation
Teamwork Approach in Arbitration: A New Perspective
Authors: Liebscher Christoph 
Published: March 2022

Attempts to increase the efficiency of case management in arbitration have been around for some time. They were mainly focused on the design and use of certain procedural rules and tools. It is beneficial that this work was undertaken, but it seems to reach its limits to improve case management. More recently, the arbitration community has started to discover the wealth of psychological knowledge to better understand and manage certain aspects of the arbitration process. However, this curiosity was limited to specific issues, such as psychology of witness evidence or of decision taking. This article proposes to take a bird’s eye view based on organizational psychology and management science and asks the question: Can the established knowledge about successful teamwork be applied to arbitration? The article reviews, if such a holistic teamwork approach leads to avenues for improving the efficiency of case management in arbitration. The answer is clearly affirmative. To view the interactions between the arbitral tribunal, the parties and other participants in the arbitration as teamwork provides new perspectives and can lead to new attitudes as well as to new tools for managing cases. Arbitrations guided by a teamwork approach promise to be more efficient, to involve parties and arbitral tribunals more intensely – and to be more enriching for the participants.
Arbitration, Efficiency, Time, Costs, Teamwork, Case management, Due process paranoia
The ‘Composite Transaction’ and Extension of Arbitration Agreements in India
Authors: Kumar Manasi 
Published: March 2022

In 2013, the Indian Supreme Court penned an innovative judgment in Chloro Controls v. Severn Trent Water Purification, where it appeared to fashion a new basis for extending arbitration agreements to non-signatories – a ‘composite transaction’ doctrine. This article argues that the ‘composite transaction’ is in fact a two-tiered analysis. The first part addresses whether the arbitration agreement may be extended to a non-signatory that is an affiliate company of one of the signatories, using the somewhat controversial ‘group of companies’ doctrine. Meanwhile, the second part addresses whether the arbitration agreement that is invoked may be extended to disputes arising within a group of contracts. This article demonstrates that while the Indian Supreme Court is developing a consent-based ‘group of companies’ doctrine, its ‘group of contracts’ jurisprudence is losing sight of parties’ intent due to a misreading of the ‘composite transaction’ test. This article concludes that in order to develop a modern and versatile, consentbased analysis into extension of arbitration agreements, the Indian Supreme Court must recast the ‘composite transaction’ test as the two-tiered analysis it represents.
Portfolio Investment, ICSID Convention, Article 25, Jurisdiction, Economic Development
Remote Hearings in International Arbitration: An Analytical Framework
Authors: Scherer Maxi 
Published: March 2022

Remote hearings are nothing new, but the Coronavirus Disease-19 (COVID-19) crisis has forced international arbitration out of its comfort zone. Parties, counsel, and arbitrators must adapt to the new reality of conducting arbitrations in the face of travel restrictions and social distancing measures. One particularly thorny question is whether and to what extent physical hearings that cannot be held due to the above-mentioned restrictions should be postponed, or be held remotely, using modern communication technologies. The present article takes a step back from the immediate crisis and proposes an analytical framework for remote hearings in international arbitration. In the context of the current pandemic and beyond, it provides parties, counsel, and arbitrators with the relevant guidance on assessing whether to hold a hearing remotely, and if so, how to best plan for and organize it. The article also tests the risk of potential challenges to awards based on remote hearings, looking in particular at alleged breaches of the parties’ right to be heard and treated equally.
international, arbitration, hearing, virtual, remote, online, COVID-19, due process, right to be heard, witness evidence, enforcement, award
Execution Immunities and the Effect of the Arbitration Agreement
Authors: Gélinas Fabien , Brenninkmeijer Mees 
Published: March 2022

The prevailing view in international legal practice is that a state does not waive its immunity from execution by merely consenting to arbitration. Yet, in the context of arbitration between states and private parties, execution immunities have emerged as a very significant obstacle to the effective implementation of arbitral awards. When immunity from execution allows states to escape obligations they have freely undertaken, and when it withholds from claimants the fruits of a favourable award, the benefits of arbitration become illusory. This article contends that the prevailing view is no longer compelling because, in the context of arbitration, deference to state immunity is misplaced and imposes an unjustified limit on the rule of law. It is suggested that an agreement to arbitrate should ultimately have the presumptive effect of waiving immunity from execution. The proposed waiver may be viewed as following from the obligation that the sovereign voluntarily undertakes when submitting to arbitration, and tracks the normative evolution of the relation between the doctrine of sovereign immunity and arbitration law.
State Immunity, Immunity from Execution, Implied Waiver, Arbitration Agreement, Subjective Arbitrability, Santiago Resolution, Rule of Law, International Public Policy.
Provisional Measures Under ICSID Rules: The Power of Tribunals to Interfere with Domestic Criminal Proceedings
Authors: Obersteiner Thomas 
Published: March 2022

In several recent International International Centre for Settlement of Investment Disputes (ICSID) cases, investors accused the respondent state of unfairly using its criminal law enforcement powers to advance its position in the arbitration. If the investor turns to the tribunal to intervene by ordering provisional measures, the tribunal finds itself in the most uncomfortable position: at the heavily contested border between state sovereignty and the tribunal’s duty to safeguard the arbitration process. The latest decisions indicate that tribunals are prepared to step in and order the suspension of domestic criminal proceedings when presented with specific evidence of harassment or intimidation of claimants or witnesses. This article reviews these controversial cases, describes the situations in which a request for provisional measures can be successful, what exactly the investor is required to show, and how far tribunals have been willing to go.
Provisional Measures, ICSID, Procedural Integrity, Equality of Arms, Criminal Proceedings, Criminal Investigation, Parallel Proceedings, Article 47, Sovereignty
Procedural Formalities in Arbitration: Towards a Technologically Neutral Legal Framework
Authors: Piers Maud , Ongenae Kevin 
Published: March 2022

This article addresses the ongoing process of digitalization in arbitration proceedings, particularly in light of the recent coronavirus disease 2019 (COVID-19) pandemic. It focuses on the different communications that occur throughout arbitration proceedings, i.e. written communication at the start and during the proceedings, oral communication at hearings, and the rendering of the arbitral award. The authors assess the past, present and future use of digital means of communication in relation to each of these instances, and analyse the extent to which the applicable legal framework (institutional rules, national laws, and the New York Convention) is actually an obstacle to digitalization. They find that the evolution towards more technologically oriented proceedings had already started, but that the COVID-19 pandemic will likely be a decisive step towards fully digital arbitration proceedings. The authors welcome that evolution, and argue that there are no overriding legal or policy arguments to hold back this trend.
Arbitration, Digitalization, COVID-19, Procedure, Formalities, Technology, Institutional Rules, Communication, Request for Arbitration, Remote Hearings, Electronic Awards
Enforceability of Awards Vitiated by Illegality and Fair Hearing: A Review from a Nigerian Law Perspective of PID v. FRN
Authors: Sodipo Bankole 
Published: March 2022

This article reviews, from a Nigerian law perspective, the judgment of the English court and the majority arbitral award in Process &amp; Industrial Developments Ltd. (PID) v. The Federal Republic of Nigeria (FRN). The arbitral tribunal awarded record-breaking damages, totalling over USD 9 billion, inclusive of interest. The award relates to an alleged breach by the FRN of a Gas Supply and Processing Agreement (GSPA) to a facility that was never constructed by PID. The signatory of the GSPA, PID, was a British Virgin Island corporation. Although PID had incorporated a local PID Corporation in Nigeria (PIDNigeria), it never executed the GSPA. This article is divided into three sections. Section 1 features the introduction and a general commentary. Section 2 focuses on the second leg of the FRN’s objection: ‘Whether or not the Claimant failed to comply with the provisions of section 54 of the Company and Allied Matters Act (CAMA) 1990 as alleged, and if so whether the GSPA is void, and/or affected by illegality, as a result’. This article does not discuss the first leg of the FRN’s objection, namely, the capacity of theMinistry of Petroleum Resources to contract on behalf of the FRN. Section 3 examines the consequences of the order issued by the Federal High Court of Nigeria (FHC) on FRN’s application, restraining the parties from proceeding with the arbitral hearing, which the tribunal ignored. It considers whether the order can bind members of the tribunal who were not parties to the FHCaction; if it was proper for the tribunal to ignore the order; and the consequences of the order on the FRN. It analyses whether the principle of fair hearing was breached when the tribunal reached a determination on the issue of the seat of arbitration without taking further submissions from the parties.
Fair Hearing, Arbitral Award, Tribunal, Arbitration, Expert Opinion, Foreign Companies, Illegality, Employment, Jurisdiction, Enforcement
Originalism Meets International Arbitration: The US Supreme Court’s Interpretation of the New York Convention
Authors: Wagner Gerhard , Koester Jan Philipp 
Published: March 2022

The subjection of non-signatories to arbitration agreements under the New York Convention is one of the fundamental issues of international arbitration, raising questions that touch upon the very concept of an arbitration agreement laid down in Article II. In the case of GE Energy Power Conversion v. Outokumpu, the US Supreme Court took a stand on that matter. It held that the New York Convention does not conflict with domestic law doctrines such as equitable estoppel which may bind third parties to arbitration agreements signed by others. Engaging only in an originalist interpretation of the Convention, the judgment fails to explore the normative depth of the problem.
GE Energy Power Conversion v. Outokumpu, US Supreme Court, New York Convention, Non-signatory, Third Party, Arbitration Agreement, Party Autonomy, Form or Writing Requirement, Equitable Estoppel