The Arbitration Clause Saga in French Law and the Emergence of a Special Regime for International Commercial Arbitration

2021 ◽  
pp. 67-86
Keyword(s):  
French Law ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Arbitration Clause

scholarly journals Zdatność arbitrażowa sporów uchwałowych w wybranych zagranicznych porządkach prawnych

2017 ◽  
Vol 21 ◽  
pp. 79-102
Author(s):  
Justyna Glinka ◽  
Łukasz Chyla
Keyword(s):  
Legal System ◽  
Comparative Perspective ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Arbitration Clause ◽  
Main Emphasis ◽  
Near Future ◽  
Legal Barriers

The aim of the article is to present one of the greatest controversy of international commercial arbitration, which is an objective arbitrability of corporate disputes. The article presents the comparative perspective on arbitrability in certain jurisdictions as well as legal barriers that prevent some corporate disputes from being fully subjected to arbitration proceedings by the parties by an arbitration clause. Thorough analysis helps to identify the Polish approach amid international ones and propose certain solutions to challenges faced by Polish legislator. Due to all the similarities, the main emphasis is put on the analysis of German legal system, which can thus be used by Polish doctrine and judicature to successfully overcome some of the respective obstacles to be faced in the near future.

scholarly journals THE EXAMINATION OF COMPETENCE: COMPETENCE IN INTERNATIONAL COMMERCIAL ARBITRATION

2019 ◽  
Vol 8 (3) ◽  
Author(s):  
Homayoun Mafi ◽  
Mohammad Reza Khademi
Keyword(s):  
Competent Authority ◽  
Competency Assessment ◽  
Arbitral Tribunal ◽  
Legal Systems ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Arbitration Clause ◽  
The Law

The arbitration clause implies the agreement of the parties' will to concede (assign) the existing or future dispute into arbitration, thus, in accordance with the law, the inevitable basis is to establish the referee's authority and jurisdiction and the influence of his/her verdict. Therefore, the formation of a court of arbitration and the issuance of a ruling requires that the existence and the validity of the contract of referral the matter to arbitration is acceptable to the parties. Although the parties may find a dispute (difference) in the existence and validity of the arbitration agreement, it is also likely that one of the parties denies or invalidates the existence of the arbitration agreement. In such a hypothesis, the formation of an arbitration authority and its review will entail consideration of the dispute before it. For this reason, one of the important issues that may arise in arbitration is the determination of the competent authority dealing with a dispute that may arise between the parties as to the existence or validity of the arbitration convention or jurisdiction. The issue of competency assessment (Competence - Competence), which improves the efficiency of the arbitral institution, can be seen in the most legal systems. Whether the arbitral tribunal has the merit of deciding whether to qualify under the terms of the arbitral agreement is a question that has long been addressed in the arbitration law as the competence to determine jurisdiction

The Existence of the Doctrine of Severability and Competence-Competence under the Constellation of Indonesian Arbitration Law

Global Jurist ◽  
2019 ◽  
Vol 19 (2) ◽  
Author(s):  
Marko Cahya Sutanto
Keyword(s):  
Legal System ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Arbitration Clause

Abstract When the parties choose Indonesia as the seat of arbitration, one might inquire whether Indonesian legal system is in conformity with the doctrines that developed in the field of international commercial arbitration. To fulfill that purpose, this paper discusses: (1) under the umbrella of severability doctrine, the agreement to arbitrate or arbitration clause is not classified as an accessory to the principal contract; and (2) the competence-competence doctrine is not adopted perfectly on the account of the question whether the tribunal can decide on its own jurisdiction is not explicitly touched.

Part VIII Arbitrators’ Decision-Making Power and Arbitral Tribunals’ Cessation of Functions, 21 Inherent and Implied Powers of Arbitrators

2016 ◽  
Author(s):  
Moses Margaret L
Keyword(s):  
Decision Making ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Arbitration Clause

The powers of arbitrators in international commercial arbitration are based on the agreement of the parties, usually set forth in an arbitration clause contained in a contract between the parties or in a separate agreement to arbitrate. Increasingly, however, arbitrators are exercising powers that are not derived specifically from a party agreement, but rather may be implied or inherent. The terms ‘implied’ and ‘inherent’ are frequently used rather loosely, and sometimes interchangeably. This chapter develops a framework for understanding and using the terms, so that parties, arbitrators, and courts can employ common meanings and concepts when considering arbitral powers. Implied and inherent powers, properly exercised, can help ensure that the arbitral process fulfils its promise of providing a fair, ethical, and reasonable way to resolve disputes.

THE ROLE OF THE DELOCALISATION THEORY IN THE DEVELOPMENT OF THE FRENCH LEGISLATION ON INTERNATIONAL COMMERCIAL ARBITRATION

2021 ◽  
pp. 125-132
Author(s):  
Daria O. Astakhova ◽  
Keyword(s):  
Civil Procedure ◽  
French Law ◽  
Commercial Arbitration ◽  
Choice Of Law ◽  
International Commercial Arbitration ◽  
Legal Science ◽  
Border Dispute ◽  
Recognition And Enforcement ◽  
Do So

The notion of delocalisation of international commercial arbitration has recently drawn increasing attention from Russian and foreign scholars. The main problematic of scientific discussions relates to the question of how closely international commercial arbitration is related to the legal order of the seat of arbitration. The emergence and development of the theory of delocalisation of international commer-cial arbitration is inextricably linked to the French legal science. French scientists stand at the origins of this theory. Besides, French law and jurisprudence have been significantly influenced by the theory of delocalisation of international commercial arbitration. The following provi-sions of the French legislation provide the most significant examples. First, article 1511 of the French code of civil procedure constitutes a basis for the use by arbitrators of the method of direct choice of law (“voie directe”). This implies that arbitrators do not have to apply any conflict of laws rules. Therefore, French law provides for a broad autonomy of arbitrators in the choice of law, while at the same time reducing the link between arbitration and national law, including the French law. French law is thus in perfect harmony with the concept of delocalisation of international commercial arbitration. Second, it is worth mentioning that the French code of civil procedure contains a limited number of grounds for refusal of recognition and enforcement of foreign arbitral awards. This particularity permits to ensure the highest efficiency of international commercial arbitration, to maintain an arbitration friendly approach at the stage of recognition and enforcement of foreign arbitral awards, as well as to recognise and enforce arbitral awards that have been set aside at the seat of arbitration. This corresponds to the idea of delocalisation of international commercial arbitration. Third, the influence of the delocalisation theory on the French legislation is also reflected in the scope of international competence of the French supporting judge, who can act in cases where one of the parties incurs the risk of denial of justice. This means that the French sup-porting judge is entitled, for example, to nominate an arbitrator if one of the parties fails to do so, even if the dispute does not have any objective links to France. The features of the French legislation on international commercial arbitration examined above prove that it is impacted by the theory of delocalisation of international commercial arbitration. The recognition in legal science, law and court practice of the autonomy of inter-national commercial arbitration from national legal orders contributes to the growth of attrac-tiveness of Paris as a place of cross-border dispute resolution.

scholarly journals International Commercial Arbitration and the Possible Application Thereof in Iraq

2019 ◽  
Vol 30 (1) ◽  
Author(s):  
علي فوزي الموسوي
Keyword(s):  
Judicial System ◽  
Arbitral Tribunal ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Arbitration Clause ◽  
International Court ◽  
Personal Status ◽  
Judicial Action ◽  
The Law ◽  
Commercial Disputes

 International commercial arbitration is a special judicial system based primarily on an agreement, be it an arbitration clause or an arbitration agreement (compromise), between parties to a dispute. It is therefore a system aiming at settling commercial disputes by submitting them to a single arbitrator, or an arbitral panel, or an arbitral tribunal (e. g. , the International Court of Arbitration). It is therefore also a means for settling an existing or future dispute that entails refraining from resorting to the competent judiciary. It is also an extra – judicial action aiming at establishing justice between people. The aim of arbitration is to bring justice to parties in conflict, but it is also designed to preserve peace among them, by providing solutions that are deemed satisfactory by each party, and through direct confrontation. It is a technical means for peaceful cooperation between countries with different systems. Resorting to international commercial arbitration is intended to solve a dispute based on a desire for reconciliation, to thereby avoid private retribution, without waiving the protection of the law, although it does entail waiver of state judges’ jurisdiction to rule over the dispute, since the parties choose their own judge. This type of Arbitration is called “international” if it relates to international commercial interests. Arbitration is also used in other areas, e. g. , personal status and tribal arbitration in Iraq. However, our study concentrates on international commercial arbitration and the possible application thereof in Iraq.

International Commercial Arbitration

2009 ◽  
Author(s):  
Simon Greenberg ◽  
Christopher Kee ◽  
J. Romesh Weeramantry
Keyword(s):  
Commercial Arbitration ◽  
International Commercial Arbitration

Non-Signatories in International Commercial Arbitration: Contesting the Myth of Consent

2018 ◽  
Vol 18 (2) ◽  
pp. 59-84
Author(s):  
Slavomír Halla
Keyword(s):  
Case Law ◽  
Good Faith ◽  
Mutual Understanding ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Starting Point ◽  
Professional Audience

Abstract Consent, the final frontier. International commercial arbitration is a dis­pute resolution mechanism embedded in consent of the parties involved. Presentation of such a mutual understanding is done through an arbitration agreement. However, the aim of this paper is to analyse whether its contractual, indeed consensual, nature is the only element which the courts use to identify the subjects who may compel or must be compelled to arbitrate disputes, or whether they employ other considerations as well. The paper will focus on extension doctrines which might be less known even to a professional audience: piercing of the corporate veil, estoppel & group of companies. A review of selected case law leads to a conclusion that consent-finding analysis is defi­nitely a starting point of any analysis. However, at the same time courts and arbitrators do indeed use tools of contract interpretation and the ones based on equity or good faith considerations to establish, and exceptionally force, the implication of consent far beyond what is obvious.

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