Some Private International Law Aspects of the Arbitration Act 1996

1997 ◽  
Vol 46 (2) ◽  
pp. 274-308 ◽  
Author(s):  
Jonathan Hill
Keyword(s):  
New York ◽  
International Law ◽  
Western Europe ◽  
Private International Law ◽  
International Level ◽  
Commercial Arbitration ◽  
England And Wales ◽  
Model Law ◽  
New York Convention

As a method for resolving commercial disputes which have connections with two or more countries, arbitration has been given a tremendous boost this century by two developments at the international level. The New York Convention of 1958—which was first implemented in England and Wales by the Arbitration Act 1975—introduced a regime which went a long way toward ensuring that arbitration agreements are respected and that arbitral awards are easily enforceable. The Convention has been hugely successful in that it has been ratified by upwards of 90 States, including all the countries of Western Europe (with the exception of Iceland) and nearly all countries which are significant commercial centres. More indirect has been the influence of the Model Law on International Commercial Arbitration, which was adopted by UNCITRAL in 1985. Although the Model Law, which seeks to encourage States to modernise their arbitration laws, has not been enacted by a very large number of countries, it has had a significant impact in that it has set an agenda for reform—even for those countries which have decided not to enact it. The Model Law has become “a yardstick by which to judge the quality of… existing arbitration legislation and to improve it”.

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 35 Singapore: Singaporean Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Yeo Tiong Min
Keyword(s):  
New York ◽  
International Law ◽  
Common Law ◽  
Private International Law ◽  
Party Autonomy ◽  
Important Principle ◽  
Settlement Agreements ◽  
The Hague ◽  
Model Law ◽  
New York Convention

This chapter describes Singaporean perspectives on the Hague Principles. Party autonomy is recognized as a very important principle in the private international law of Singapore. The primacy given to the role of party autonomy is evidenced by the adoption of the New York Convention and UNCITRAL Model Law for international arbitration, the adoption of the Convention on Choice of Court Agreements for international litigation, and the palpable support of the UNCITRAL Convention on International Settlement Agreements Resulting from Mediation. Most of private international law in Singapore is sourced in judge-made law. In the absence of direct Singapore authority, Singapore courts have traditionally looked to English case law for guidance, but increasingly, the courts have looked to the laws of other jurisdictions, and indeed international instruments which do not have binding force in Singapore law. Given the level of sophistication of existing common law contract choice of law rules, it is unlikely that Singapore will engage in radical law reform. However, it is likely that the Singapore courts will continue to look to the Hague Principles for guidance in areas where the common law is unclear or where there is a gap or strong imperative for change.

Part 1 Fundaments of Arbitration in Brazil, 2 Comments of the Brazilian Arbitration Law

2020 ◽  
Author(s):  
Sester Peter
Keyword(s):  
New York ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Recognition And Enforcement ◽  
Model Law ◽  
New York Convention ◽  
Definition Of

This chapter examines the Brazilian Arbitration Law (BAL) of 1996. The BAL is a standalone act encompassing roughly 40 articles. It is divided into eight chapters and is applicable to both domestic and international arbitration, except for Chapter VI (The Recognition and Enforcement of Foreign Awards), which is modelled on the New York Convention (NYC). Hence, the BAL legislator adopted a monistic approach. Consequently, the BAL contains no definition of domestic or international arbitration, but only defines the term foreign award. According to article 34, sole paragraph BAL, an award is considered a foreign award if it was rendered outside the territory of Brazil. The present translation of the BAL builds on the terminology of the UNCITRAL Model Law on Commercial Arbitration and the NYC because both documents inspired the authors of the BAL and are cornerstones of international arbitration. This chapter of the book then provides comments on the BAL article by article.

Understanding Public Policy as an Exception to the Enforcement of Foreign Arbitral Awards

2015 ◽  
Vol 2 (4) ◽  
pp. 316-350
Author(s):  
Wasiq Abass Dar
Keyword(s):  
Public Policy ◽  
New York ◽  
Special Focus ◽  
Commercial Arbitration ◽  
National Courts ◽  
Or Practice ◽  
Wide Definition ◽  
Model Law ◽  
New York Convention ◽  
Definition Of

The paper, as the title suggests, aims at understanding and exploring the doctrine of public policy as a ground for refusing enforcement of foreign arbitral awards. Public Policy is one such ground provided in the New York Convention as well as in the uncitral Model Law, which is most often invoked in the national courts to challenge or refuse the enforcement of foreign arbitral awards. What makes it more complicated is the lack of common world-wide definition of public policy or practice on its application, as the same varies from State to State. The traces of ambiguity, subjectivity (at the hands of the courts in terms of interpretation of the concept), and unpredictability associated with the concept of public policy have at times significantly thwarted the effectiveness and efficiency of international commercial arbitration. This paper attempts to understand and explore the enigma of public policy as an exception to the enforcement of foreign arbitral awards. Apart from revisiting various scholarly works on this issue, interpretation of this concept by various judicial institutions across the globe (with special focus on India, Pakistan, Bangladesh and Sri Lanka) has been attempted, followed by a comparative analysis, to analyse its application on the ground. This paper argues and suggests that a more desirable method of interpreting public policy, i.e. narrow interpretation, is the need of the hour, keeping in consideration the growing demands of international trade and commerce.

Practitioner's Handbook on International Commercial Arbitration

2019 ◽  
Keyword(s):  
New York ◽  
International Criminal ◽  
Case Law ◽  
Criminal Court ◽  
International Arbitration ◽  
General Introduction ◽  
Comprehensive Overview ◽  
Commercial Arbitration ◽  
Model Law ◽  
New York Convention

This book provides reports on the arbitration systems and laws of thirteen countries in addition to commentaries on the arbitration rules of the International Criminal Court (ICC), the International Centre for Dispute Resolution (ICDR), the London Court of International Arbitration (LCIA), and UNCITRAL Arbitration Rules as well as on the UNCITRAL Model Law and the New York Convention. This comprehensive overview of the key arbitral jurisdictions and the most important arbitral rules and conventions makes it a unique and indispensable work that belongs on the desk of each practitioner. The book combines a practical approach with in-depth legal research and analyses of important national and international case law. This new edition is written to meet the needs of both the non-specialist lawyer requiring quick and useful information on a particular legal system or set of rules or who is interested in a concise general introduction into the law of international arbitration, and the experienced arbitration practitioner looking for well-founded information on a particular issue.

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 37 South Korea: South Korean Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Hyun Suk Kwang
Keyword(s):  
International Law ◽  
Private International Law ◽  
Commercial Arbitration ◽  
Choice Of Law ◽  
Applicable Law ◽  
South Korean ◽  
Trade Law ◽  
International Trade Law ◽  
The Hague ◽  
Model Law

This chapter studies South Korean perspectives on the Hague Principles. Korea has enacted choice of law rules for courts in litigation and choice of law rules for arbitral tribunals. The former are set forth in the Private International Law Act of Korea (KPILA) and the latter in the Arbitration Act of Korea (KAA). The single most important Korean legislation on private international law is the KPILA, which mainly consists of provisions on applicable law and on international jurisdiction in civil and commercial matters. As for the KAA, it was modelled on the 1985 Model Law on International Commercial Arbitration of United Nations Commission on International Trade Law (UNCITRAL), and further amended in 2016 in order to reflect the amendments adopted in 2006 to the UNCITRAL Model Arbitration Law. Since Korea has detailed choice of law rules for courts and arbitral tribunals, the role which could be played by the Hague Principles in Korea will be very limited. Korean courts could use them for reference in the interpretation, supplementation, and/or development of applicable rules of choice of law regarding matters not covered by the choice of law rules of the KPILA.

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 26 Iran: Iranian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Yassari Nadjma
Keyword(s):  
International Law ◽  
Contract Law ◽  
Private International Law ◽  
Commercial Arbitration ◽  
International Commerce ◽  
Trade Law ◽  
International Trade Law ◽  
Foreign Law ◽  
The Hague ◽  
Model Law

This chapter presents Iranian perspectives on the Hague Principles. Generally, private international law is not very developed in Iran, neither in theory nor in practice. This is for diverse reasons: the history and the legacy of the capitulations systems, according to which foreign citizen and entities were exempted from Iranian jurisdiction, is still vividly felt, as is the fear of potential foreign domination. This has nurtured a general suspicion towards the application of foreign law as a gateway for political intervention of foreign powers. Following the revolution of 1979, the political situation and the instability and insecurity of foreign investments have been major impediments to the spread of international commerce between Iran and the rest of the world, diminishing the need to establish efficient private international law tools. This factual situation is mirrored by a poor engagement with international contract law in scholarly writings, which often remain hypothetical and abstract due to the lack of case law. Nowhere in the literature is any reference made to the Hague Principles. Only in the field of international arbitration has there been some movement: in 1997, the Law on International Commercial Arbitration (LICA) was enacted, a code that relies greatly on the United Nations Commission on International Trade Law (UNCITRAL) Model Law.

scholarly journals International Commercial Arbitration in Malaysia

2021 ◽  
Vol 29 (S2) ◽  
Author(s):  
Iyllyana Che Rosli
Keyword(s):  
New York ◽  
Best Practice ◽  
International Treaties ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Cross Border ◽  
Before And After ◽  
Recognition And Enforcement ◽  
Model Law ◽  
New York Convention

In the recent two decades, the wave of globalisation has hit the Malaysian market. It hence contributes to the popularity of arbitration as the means to settle cross border commercial disputes. The existing literature concerned with Malaysia suggests that the recent trend in Malaysia is that arbitration has become the dominant choice of dispute resolution forum. Using qualitative and doctrinal methods, this paper seeks to analyse the regulatory framework for international commercial arbitration in Malaysia, before and after Malaysia’s accession to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (hereinafter, NYC 1958). The NYC 1958 is one of the most successful international treaties with 161 contracting States. The NYC 1958 aims to promote uniform practical procedures for the recognition and enforcement of foreign arbitral awards in its contracting States, irrespective seat of the awards. In doing so, the paper examines two significant periods of arbitration laws in Malaysia: pre and post-accession to the NYC 1958. The paper concludes that Malaysia no longer follows English arbitration legislation and instead follows international best practice by adopting the UNCITRAL Model Law on International Commercial Arbitration (hereinafter, UML) as the basis of its modern legislation, the Arbitration Act 2005. Malaysian courts are also seen to adopt a positive ‘pro-enforcement’ attitude in the application to recognise and enforce foreign arbitral awards, in promoting maximum enforcement of awards as promoted by the NYC 1958 and the UML.

Part III International Arbitration Agreements: Issues and Perspectives, 6 Some Reflections on the Making of International Arbitration Agreements for the Resolution of Commercial Disputes

2016 ◽  
Author(s):  
Saville Lord
Keyword(s):  
New York ◽  
Dispute Resolution ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
International Dispute ◽  
Model Law ◽  
New York Convention ◽  
Legal Procedures ◽  
Commercial Disputes

This chapter presents some thoughts on international arbitration. It begins with brief descriptions of the New York Convention and the UNCITRAL Model Law, which serve as the foundations of international dispute resolution. It then discusses arbitration agreements, the role of institutions, the role of law, and the disadvantages of arbitration. It argues that international commercial arbitration has become much more like that of the London Commercial Court; more often than not lawyers are called in from the outset. Pleadings, discovery, and the like are commonplace. The arbitral process has also become more expensive, notwithstanding substantial efforts by arbitral institutions and others to limit costs. It further suggests that where the tribunal considers that the dispute can be dealt with fairly and more cheaply without the full panoply of such legal procedures as the parties’ lawyers propose, that they make certain that the parties themselves, not just their lawyers, are made aware of the tribunal’s view.

scholarly journals NATIONAL COURT INTERVENTION IN ARBITRATION AS AN INVESTMENT TREATY CLAIM

2011 ◽  
Vol 60 (2) ◽  
pp. 485-498 ◽  
Author(s):  
Richard Garnett
Keyword(s):  
New York ◽  
Dispute Resolution ◽  
National Court ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
National Courts ◽  
Investment Treaty ◽  
Model Law ◽  
Court Intervention ◽  
New York Convention

International commercial arbitration has long been a popular method for resolving cross-border business disputes. The opportunity for parties to choose their adjudicators and the dispute resolution procedure, the scope for privacy and the greater capacity for enforcement of awards compared to court judgments are all important reasons that parties prefer international arbitration over litigation. Reinforcing this trend in favour of international commercial arbitration has been a general consensus among national courts and legislatures that support, rather than interference, should be provided to the arbitral process. Such a philosophy is apparent, for example, in the requirements in the widely adopted New York Convention for States to recognize and enforce both foreign arbitration agreements and awards, and in international instruments such as the 1985 UNCITRAL Model Law on International Commercial Arbitration, which authorize national courts to assist, rather than intervene, in the conduct of arbitrations within their borders. Moreover, international commercial arbitration has proven to be sufficiently flexible as a dispute resolution method to be used both in disputes between private parties, and between private and State entities.

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