bluuebunny/crossref_metadata_2025_split huggingface dataset:
Class Actions and Arbitration: Alternative Approaches Based on the (Ever Evolving) Dutch Experiences with Collective Redress
Authors: van Zelst Bas 
Published: March 2022

This article first aims to contribute to an understanding of the Dutch regime for collective redress against the background of pending discussions on the possibility, desirability, and practicability of the settlement of mass claims by means of arbitration. Secondly, it assesses to what extent arbitration may play a part in the Dutch context. The article proceeds in two sections. After the introduction, section 2 analyses the Dutch collective redress regime. It is concluded that Dutch law does not allow for class action arbitration. This, however, does not mean that arbitration cannot play a part under Dutch law in the context of collective redress. It is submitted in section 3 that Dutch law provides for two options. First, an arbitral tribunal may be engaged to assess whether a collective claim at law exists. This mechanism allows collective claim vehicles and (purported) wrongdoers to assess their position at law in the realm of a confidential arbitration. In this context arbitrators serve as facilitators to a collective settlement that is subsequently brought before the court in order to be declared binding. Secondly, disputes over rights of individual claimants under a settlement agreement that has been declared binding may be settled in arbitration.
The Full Recovery of Third-Party Funding Costs in Arbitration: To Be or Not to Be?
Authors: van Oeveren Hanneke , Kühn Wolfgang 
Published: March 2022

The Essar v. Norscot decision rendered by the High Court of England and Wales in 2016 has opened the door, or at least a window, for the recovery of the full fees of third party funding arrangements in international commercial arbitration. The recoverability of the success fees or premiums payable under a third-party funding (TPF) agreement as costs in arbitration can be criticized on three fundamental and overlapping bases. First, the distinction between funds actually advanced by the third-party funder and a premium is crucial. Secondly, the arbitrator’s discretion is defined and limited by law and should focus primarily on the allocation of costs rather than the definition of the recoverable costs. Finally, an award for the full recovery of third party funding fees should only be made on a clearly defined legal basis. In addition, there are a number of policy considerations which point against the recoverability of the full costs of TPF. The authors recommend modifications to institutional arbitration rules and national arbitration laws to clarify issues related to the recoverability of third party funding costs in arbitration. In the meantime, commercial parties may consider including more detailed contractual provisions to avoid any unforeseen or undesired liability for the costs of TPF.
A Vision for Green Foreign Direct Investment: Proposals for an Investor-State Collaborative Effort
Authors: Trigo Ana Coimbra 
Published: March 2022

Time is of the essence. With each passing day, the options and alternatives available to the peoples of the world to stem the tide of man-made destruction to the Earth are steadily disappearing. The Stockholm Treaty Lab challenged professionals from various disciplines to imagine and design strategies to mitigate and reduce the detrimental impact of human beings upon the planet. This article reflects the culmination of thought processes and ideas of one the participating teams. The team drafted a legal instrument within the currently existing U.N. infrastructure, and included a number of aspects advocating for its widespread adoption, seeking to incentivize parties with the power to effect environmentally sound change to be more active. Economists, business consultants, lawyers, and scientist sought to find solutions to three manmade issues, namely (1) food waste, (2) deforestation, and (3) lack of renewable energies. Each of these three categories represent a major exacerbating force upon climate change, yet are areas that could be drastically affected with cooperation among states and investors. Within each category, both general policies and specific solutions/incentives are outlined. Further, dispute resolution mechanisms and the imagined economic impact for investors financing these initiatives are discussed. It is the belief of the team that the problems considered by the article have little chance of being effectively addressed unless there is widespread cooperation, thus it is hoped that articles like this one can be the catalyst for that change.
Restrictive Interpretation of Investment Treaties: A Critical Analysis of Arbitral Case Law
Authors: Petsche Markus 
Published: March 2022

This article critically discusses the recourse to the principle of restrictive interpretation (in dubio mitius) by treaty-based investor-state arbitral tribunals. Although its status as a rule of international law is at best controversial, in dubio mitius has been applied by a number of arbitral tribunals interpreting umbrella clauses and most-favoured-nation (MFN) provisions contained in investment treaties. This article shows that restrictive interpretation is inappropriate and undesirable. It highlights, first of all, that no rational justification for in dubio mitius exists and that the sovereignty-based rationale put forward is obsolete, illogical and largely dysfunctional. It also shows that restrictive interpretation frequently clashes with other, more fundamental, rules of treaty interpretation and that in dubio mitius interpretation of investment treaties has an inherently discriminatory effect on investors.
Investment Treaties, Treaty Interpretation, Restrictive Interpretation, In Dubio Mitius, Umbrella Clause, Mfn Provision, State Sovereignty, Investment Law
Rethinking the Role of Arbitration in International Tax Treaties
Authors: Salehifar Alireza 
Published: March 2022

The dispute resolution system of Double Tax Agreements (DTAs) has been a major focus for both tax authorities and researchers around the world. For several years Article 25 of the Model Tax Convention of the Organisation for Economic Co-operation and Development on Income and on Capital (‘OECD Model Tax Convention’), and Article 25 of the United Nations Model Double Taxation Convention between Developed and Developing Countries (‘UN Model Tax Convention’) had relied on a negotiation-based Mutual Agreement Procedure (MAP) as the only mechanism for the resolution of disputes arising from a tax treaty. In order to improve the function of the MAP mechanism, the OECD, in 2008, and the UN Tax Committee, in 2011, introduced a binding ad hoc arbitration clause in Article 25(5) of their respective Model Tax Conventions. However, the OECD and UN Model Tax Conventions have reserved very limited role for arbitration in resolving tax treaty disputes. After establishing that the inclusion of the current arbitration clauses in the OECD and UN Model Tax Conventions have not assuaged the tensions created by divergent interpretation or application of rules espoused in DTAs, this article examines possible techniques for improving the dispute resolution system of DTAs.
Arbitration, Dispute, Double Tax Agreement, Model Tax Convention, Mutual Agreement Procedure, OECD, Taxation
A Taxing Endeavour: Addressing the Tax Consequences of Investment Arbitration Awards
Authors: Leikin Eric , Keller Moritz 
Published: March 2022

The authors proceed from the theoretical rule that where a claimant establishes that the value of its award will be taxed in excess of what its profits would have been taxed absent the respondent state’s breach, it may be entitled to a ‘tax remedy’ in order to prevent under-compensation. They then analyse tribunal practice, with some interesting (and surprising) results. First, despite the taxation of awards often amounting to tens of millions of dollars, tribunals have devoted very little attention to this issue. Second, tribunals have tended to make a distinction between those potential award tax burdens imposed by the respondent state and those imposed by a third state. Whilst requests for tax remedies regarding tax liabilities to third states have been refused in all publicly available decisions, some tribunals have been sympathetic to requests for tax remedies regarding tax liabilities to the respondent state; although importantly, such awarded remedies have been non-monetary in nature. Finally, looking forward, the authors propose that tax remedies be categorized as ‘future losses’, a well-established concept. Mindful of the hurdles such arguments would need to overcome, including the requirements of reasonable certainty and proximate causation, the authors point to existing law and practice to provide a corresponding legal framework, in the hope of moving towards consistent and objective future practice on this point.
Tax remedies, tax gross-up, taxes in investment arbitration, taxation of arbitral awards, future losses, speculative losses, proximate causation, reasonable certainty, burden of proof for establishing damages, two-tiered burden of proof for future losses
Contractual Time Limits to Commence Arbitration
Authors: Karasahin Yasin Alperen 
Published: March 2022

Arbitration and multi-tier dispute resolution clauses may contain a time limit to commence arbitration. The expiry of such a time limit could have different legal results. First, it could make the arbitration clause ineffective. Second, it could extinguish the claim or prevent its enforcement through legal proceedings. In the latter case, the contract provision about the time limit would have to be examined with regard to its compliance with mandatory provisions of the law applicable to limitation periods. Even the determination of the law applicable to limitation periods causes considerable difficulty. It is another difficult issue to determine which provisions of the law applicable to limitation periods are mandatory and, if so, whether the contract provision complies with the limits of the law. Once it is established that the contract provision is valid, the acts necessary to prevent the expiry of the time limit would have to be examined.
limitation period, preclusion period, extinctive prescription, time bar, commencement of arbitration, mandatory rule, jurisdiction, applicable law, interpretation, validity.
Ten Years Later: Why the ‘Renaissance of Expedited Arbitration’ Should Be the ‘Emergency Arbitration’ of 2020
Authors: Lal Hamish , Casey Brendan 
Published: March 2022

While the last decade will be remembered for the splash created by the invention of Emergency Arbitration and its subsequent wide adoption across institutional rules, this article proposes that the next decade should be known for the Renaissance of Expedited Arbitration. There is little doubt that Emergency Arbitration responded to certain user needs and sought to fill a void in international arbitration related to interim relief ordered by an arbitrator prior to the constitution of the tribunal. However, the label Emergency Arbitration ‘over-promised’ by suggesting to some users that under this innovation they could achieve a quick final resolution of their dispute. Now that the ability for parties to obtain pre-tribunal-constitution interim relief is settled, the arbitral community must respond to the user’s desire to obtain swifter final resolution. This article proposes that the best way to achieve that end is through the expansion of the parameters associated with the applicability of the ‘expedited track’ in arbitral rules. By expanding the default application of these rules, users would have the ability to obtain swifter final resolution of more disputes while retaining safeguards in situations where the arbitral tribunal found that the expedited track would move ‘too fast’ for the dispute at hand.
Expedited Arbitration, Emergency Arbitration, Interim Relief, hundred-Day Arbitration, Enforceability, ICC Commission Report Emergency Arbitrator Proceedings, Interim Order, Efficiency, Time, Cost
The (Underdeveloped) Use of Arbitration in International Insolvency Proceedings
Authors: Madaus Stephan 
Published: March 2022

The commencement of insolvency proceedings has mostly been perceived as a form of disturbance in the arbitration world because it could provide a cause to stay pending arbitration proceedings and hinder the enforcement of arbitral clauses and arbitral awards. Most of the academic discussion has focused on these issues. This article will discuss these issues only briefly. Instead, it aims at demonstrating that disputes which arise in the context of international insolvency proceedings could benefit from a more advanced use of arbitration. The article explains the arbitrability of disputes in insolvency proceedings and the limited scope of the public policy defense with the national insolvency laws functioning as a gatekeeper to arbitration. Consistent with existing insolvency case law in many jurisdictions, an arbitration-friendly approach is formulated. Following this approach, the article outlines disputes that could be resolved efficiently when addressed in arbitration.
Insolvency, arbitration, arbitrability, bankruptcy, core bankruptcy issue, public policy, cross-border insolvency proceedings, related disputes
Adaptation of Long-Term Contracts by International Arbitrators in the Face of Severe Economic Disruptions: Three Salient Problems
Authors: Berger Klaus Peter 
Published: March 2022

For many decades, international arbitrators have gone beyond deciding traditional legal disputes and have been involved in the adaptation of long-term contracts. These contracts are particularly vulnerable to extreme and unforeseen changes of economic circumstances such as those caused by the consequences of the Coronavirus Disease 2019 (COVID-19) pandemic. However, doubts have always been raised as to whether, how, and to what extent international arbitrators may interfere with the parties’ contractual bargain. In dealing with these concerns, this article explores three essential issues. They relate to the procedural authority for and the substantive legitimacy of the tribunal’s adaptation decision, as well as to the search for adaptation standards, which ensure outcomes of contract adaptations by international arbitral tribunals that make business sense.
Covid-19 pandemic, contract adaptation, gap filling, long-term contracts, hardship, force majeure, notion of ‘dispute’, good faith, ex aequo et bono.
Ascertaining the Proper Law of an Arbitration Agreement: The Artificiality of Inferring Intention When There Is None
Authors: Chan Darius , Jim Yang Teo 
Published: March 2022

The common law choice of law principles for determining the proper law of an arbitration agreement previously thought to be settled by the English Court of Appeal’s decision in Sulamérica v. Enesa [2013] 1 W.L.R. 102 have now been thrown into disarray after a recent string of three judgments: starting with the Singapore Court of Appeal’s decision in BNA v. BNB [2019] S.G.C.A. 84, followed by two decisions from the English Court of Appeal in Kabab-Ji v. Kout Food Group [2020] EWCA Civ 6 and Enka Insaat Ve Sanayi A.S. v. OOO ‘Insurance Company Chubb’ [2020] EWCA Civ 574.
This article undertakes a comparative analysis of English and Singapore case law and argues that the common law should take party autonomy more seriously by ascertaining whether the parties have a clear and real intent to choose a particular system of law to govern their arbitration agreement. The current reliance on presumptions or inferences of what the parties must have intended is in reality an artificial arrogation to judges and arbitrators on what ‘commercial’ sensibilities businessmen should be taken to have. In the absence of a clear and real intent, arbitrators and state signatories to the New York Convention ought to apply the law of the seat as the default choice of law rule in the New York Convention.
governing law, proper law, arbitration agreement, choice of law, conflict of laws, Sulamérica, Kabab-Ji, Enka, BNA, separability, validation principle, Article V(1)(a), New York Convention.
Enforcement in Indonesia: Obtaining a Power of Attorney for Registration of the Award
Authors: Katsikis Dimitrios , Nicholls Anthony Cheah 
Published: March 2022

Indonesia is forecast to become one of the world’s top ten economies by 2030, which will lead to an increase in arbitrations with an Indonesian element. Sophisticated commercial parties and arbitration specialists alike are often unaware of a peculiarity of Indonesian arbitration law which requires that the arbitral tribunal must apply for, and obtain, registration of an arbitral award with the Indonesian courts before the award can be enforced. If a tribunal is not aware of this peculiarity, and becomes functus officio without having obtained registration, the parties risk having an award that cannot be enforced in Indonesia.
In this article, we examine the registration requirement and set out steps that an arbitral tribunal must take in order to register an award with the Indonesian courts. We then consider the circumstances in which a tribunal can satisfy the registration requirement by providing parties’ counsel with a Power of Attorney, so that they can register the award on its behalf. We analyse some of the key features that the Power of Attorney should have, as well as the pitfalls parties should be aware of, drawing on aspects of Indonesian law as well as our practical experience.
Indonesia, registration, power of attorney, proxy, mandate, mandator, mandatory, tribunal, legalization, notarization
Arbitrability of Disputes Under Iran’s Bilateral Investment Treaties: Article 139 of the Iranian Constitution Reconsidered
Authors: Nasrollahi Shahri Nima , Narimani Mohammad-Reza , Rahbar Navid Sato 
Published: March 2022

This article intends to investigate a major set-back to arbitration under Iranian law, i.e. the requirement of receiving an authorization from the Iran Council of Ministers and/or Parliament to refer disputes relating to public and state-owned assets to arbitration. This requirement is enshrined in Article 139 of Iranian Constitution (‘Article 139’).
The article examines this provision through the prism of arbitrability focusing on treaty-based investment arbitration. To this end, the existing practice and court precedence pertaining to Article 139 are studied and critically analysed. In particular, the implications of this requirement on the jurisdiction of arbitral tribunals and enforcement of awards are considered in depth in the light of the wording of bilateral investment treaties (BITs) concluded between the Islamic Republic of Iran and other countries.
Overall, we conclude, that Article 139 is not as serious a problem in BIT arbitration as it may be in commercial arbitration, especially as far as enforcement of awards is concerned. This has to do, partly, with the wording of Iran’s BITs, the risk of state responsibility for nonenforcement of awards in investment arbitration, and, of course, the possibility to enforce arbitral investment awards outside of Iran.
Digital Readiness Index for Arbitration Institutions: Challenges and Implications for Dispute Resolution Under the Belt and Road Initiative
Authors: Goh Allison 
Published: March 2022

Post-COVID-19, a paradigm shift has occurred in the adoption of technology in arbitration. Leading arbitral institutions have adapted quickly, highlighting the foresight of institutions who have existing technological infrastructure in place. This article proposes a ‘Digital Readiness Index’, which aims to evaluate arbitral institutions on their level of digital readiness based on five evaluative indicators. Crossreferenced against Institute for Management Development (IMD’s) 2019 World Digital Competitiveness Rankings, the findings reveal synergies between an economy’s digital competitiveness and the adoption of technology in dispute resolution. To further the development of dispute resolution processes under the Belt and Road Initiative, strategic cooperation is required under the Beijing Joint Declaration of the ‘Belt and Road’ Arbitration Institutions, to advance best practices and protocols in the use of technology in arbitration, and address challenges such as cybersecurity and data protection.
international arbitration, belt and road initiative, digital competitiveness, technology and arbitration, remote hearing, arbitration institutions, cybersecurity and data protection
A Massive Fire and a Mass of Confusion: Enka v. Chubb and the Need for a Fresh Approach to the Choice of Law Governing the Arbitration Agreement
Authors: Koepp Johannes , Turner David 
Published: March 2022

The recent judgment of the Supreme Court of the United Kingdom in Enka v. Chubb has provided an answer, at least provisionally, to the thorny question of how the proper law of an arbitration agreement is to be determined under English law. The majority of the Supreme Court (in a 3–2 split) held that in the absence of an express or implied choice of law by the parties, the ‘default rule’ should be that the arbitration agreement is presumed to be governed by the law of the arbitral seat, as the law ‘most closely connected’ to the arbitration agreement. Yet the Supreme Court’s reasoning is not wholly satisfying, and the two dissenting judgments present powerful arguments for taking a contrary approach. This article proposes a means to sever this enduring Gordian knot: drawing from the in favorem validitatis principle applied by the Swiss, Dutch and Spanish legal systems in determining the substantive validity of an arbitration agreement, we suggest extending this principle to encompass questions of the scope of an arbitration agreement and arbitrability. Under this approach, instead of focusing on determining the proper law of the arbitration agreement, the courts need only ask themselves two questions: (i) does the claim in question fall within the scope of the arbitration agreement, as interpreted under any of the potentially applicable laws, and (ii) is it arbitrable under any of those laws?
(UK) Supreme Court, Enka v Chubb, Arbitration agreement, Proper law, Choice of law, Governing law, In favorem validitatis, Favour principle, Arbitral seat/seat of arbitration, Scope of the arbitration agreement
Evolution of 28 U.S.C. § 1783: An Unexplored Tool to Support International Arbitration?
Authors: Rangachari Rekha , Duggal Kabir , L. Schmidt Peter 
Published: March 2022

In certain disputes, it may be important to acquire evidence from the other party, but it is difficult to do so because the international arbitration process envisions only a limited form of discovery from the opposing party in the form of document production. There is, however, the potential of an unexplored option in US law to help fill this void. 28 U.S.C. § 1783, also known as the ‘Walsh Act’, enables a United States court, under certain circumstances, to subpoena a national or resident of the United States who is in a foreign country to personally appear as a witness before the court, or before someone designated by the court, or to produce specific testimony or documents. Considering the ubiquity of American parties in international disputes, section 1783 has the potential to become an important tool in the arsenal of a disputes lawyer. Indeed, considering how section 1782 has been increasingly applied in international arbitration, it is possible that section 1783 might evolve as an important component in considering strategies for international arbitration. Like section 1782, however, due to its lack of use to date and vague statutory language, its applicability to various forms of international arbitrations remains an unfortunately open question. But it still has the potential to change international arbitration as we know it
Witness testimony, evidence, subpoena, domestic courts, discovery