bluuebunny/crossref_metadata_2025_split huggingface dataset:
Le Règlement amiable des différends en matière de projets de construction: Quelques expériences pratiques
Authors: Vermeille François 
Published: April 2022

The amicable settlement of disputes is in fact a ?management tool? to be set in motion for preventing potential disagreements and subsequently for solving differences and disputes before litigation or arbitration. As a consequence, any contract should have relevant provisions for a clear understanding of how this management tool must be implemented. Unfortunately it is frequently not the case: the parties seem to be satisfied with a mere contractual reference to the principle of an amicable settlement without going to the next step, which is to select the appropriate tool and, more important, to agree on the assistance of a third party (the ?Neutral?) for using the tool. The present article gives an overview of some personal experiences regarding the amicable settlement of disputes related to construction projects.
These examples demonstrate that each settlement procedure has its own characteristics and that it is difficult to make generalizations. Nevertheless, they confirm the advantage to get involved a third party ready to ?jump in the matter? and to be creative on the basis of a complete understanding of the ?true reason? of the dispute, which can be sometimes purely emotional.
Even when a party more or less reluctant to enter into the amicable settlement proceedings refuses to subsequently submit formal referral to the third party, the presence of the latter institutes a climate of confidence among the parties, in which direct negotiations can take place in the shadow.The best way leading to the successful settlement of a dispute is to rely on a flexible framework allowing the parties to select the most appropriate procedure in cooperation with the third party. It is therefore recommended to make compulsory the first meeting between the parties and the Neutral before one of the parties can notify its decision to terminate the proceedings. Such provision, among others, is part of the new ICC ADR Rules.
Arbitration and Human Rights
Authors: Besson Sébastien 
Published: April 2022

The impact of Human Rights, more particularly the European Convention on Human Rights, on arbitral proceedings is increasingly important. Thus, Article 6 (1) of the European Convention on Human Rights is applicable in the context of compulsory arbitration (arbitration imposed on the parties by law) and in court proceedings related to arbitration, notably setting aside proceedings.
A more difficult question is whether this provision applies in the proceedings before the arbitrators themselves. This article concludes that it does.
A distinct ? and also controversial ? issue is whether the States that have adhered to the Convention should enact specific rules in order to ensure that the arbitration process will respect the guarantees of Article 6 (1). In particular, should States provide for judicial review of the award in order to effectively ensure Convention rights? This question has a direct impact on the possibility to waive in advance any application to set aside the arbitral award (Art. 192 PIL Act). The author concludes that a clearcut answer is not possible and that the test is whether the exclusion of any application to set aside the award is ?arbitrary or unreasonable?.
The author also addresses the question of the grounds (reasons) for the award (§ 21) and the alleged disqualification of an arbitral tribunal based on article 6 (1) of the European Convention on the ground that the arbitrators examined issues disputed on the merits in the context of a request for interim measures and would hence be biased (§ 29).
In the conclusion, the article stresses that the scope of Article 6 (1) may be very broad and that this provision can no longer be ignored by arbitration practitioners.
Vorsorgliche Massnahmen im Internationalen Schiedsprozess
Authors: von Segesser Georg 
Published: April 2022

The article deals with provisional and protective measures in international arbitration and in particular with such issues as the authority and the requirements to issue provisional and protective measures as well as the subject matter of such measures. With the main focus on the present best practice for international arbitration in Switzerland, the article briefly also touches upon the ICC Pre-Arbitral Referee, the new ICDR Emergency Measures Rule and the revision of article 17 of the UNCITRAL Model Law.
With the enumeration of the different types of provisional and protective measures, e.g. orders to continue with a contractual performance, orders which prohibit behaviour likely to cause personal injury, orders with the purpose of securing the enforcement of the award, orders for security of costs, and further the possibility to render preliminary orders in ex-parte proceedings, the author shows that there is a vast field of application for interim remedies.
Dependent on the applicable arbitration rules which may or may not grant authority to the arbitral tribunal to issue provisional and protective measures, it may be advisable to address the issue in the individual arbitration clause through specific provisions taking the special needs of the particular case into consideration.
Provisional and protective measures in international arbitration are very helpful and efficient remedies to secure and enforce a party’s claims and prayers for relief. With the revised article 17 of the UNCITRAL Model Law and its forthcoming adoption into the national laws of many countries, a further major step into the direction of transnational arbitration rules for the recognition of provisional and protective measures issued by arbitral tribunals will be achieved.
Confidentiality and Privileges in Cross–Border Legal Practice: The Need for a Global Standard?
Authors: Heitzmann Pierre 
Published: April 2022

Summary:
More and more often, arbitration practitioners are confronted with the issue of whether a document is covered by legal privilege or whether it can be used as evidence even if it was exchanged in the course of settlement discussions. Because of the significant differences between domestic rules governing the issues of privilege/professional secrecy and confidentiality,parties and their counsel have different expectations about what information or documents should be considered privileged or confidential. To which ethical rules or law the Arbitral Tribunal should refer in order to decide such issues? The rules potentially applicable in cross–border transactions,especially when multinational companies have been represented by attorneys practicing in different jurisdictions, may lead to different results. Should the Tribunal consider the law of the place of the arbitration, even if there are no other connections with that law? Should the same law apply to both parties to arbitration proceedings to avoid unfair results even though the parties are located in different jurisdictions? If allegations of conflicts of interests arise following access to information deemed privileged, should such counsel be disqualified, and if this question arises, should the Arbitral Tribunal adjudicate such a dispute and on what basis? It may be unrealistic to promote “transnational rules” governing issues of legal privilege and confidentiality. Indeed, there are significant differences between countries and it is difficult,in any event, to adopt and enforce binding transnational rules. Arbitration practitioners may nevertheless be guided by general principles governing issues of privilege and confidentiality. This article presents the guiding principles identified to date in this area of law with concrete examples of their application to cross–border disputes.
La Convention de New York vue par la Doctrine Française
Authors: Clay Thomas 
Published: April 2022

Thomas Clay elaborates on the contributions of French case law to the promotion and development of the New York Convention. He demonstrates that French court decisions regarding the enforcement of Convention awards that had been annulled at the place where they had been rendered (Hilmarton, Putrabali) are at the vanguard of a truly international conception of arbitration. French court decisions have thus been instrumental to the construction of Article VII of the Convention.
Erratum: Due to a technical error during the editorial process, the footnotes for this article were missing in the published version. The article was re-published in its entirety in the March 2009 issue of the ASA Bulletin (Volume 27, Number 1).
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.
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.