The permissible scope of witness testimony in arbitral hearings—five proposed rules

2020 ◽  
Author(s):  
Jörg Risse ◽  
Antje Baumann
Keyword(s):  
Soft Law ◽  
Arbitral Tribunal ◽  
Witness Testimony ◽  
Institutional Rules ◽  
Clear Cut ◽  
Witness Statement

Abstract At least one surprise occurs in every arbitral hearing. One of those surprises is when a witness testifies beyond what has been submitted in his written witness statement. Often, such ‘out-of-scope’ testimony is unexpected, astonishing, and crucial for the outcome of the case. Surprisingly, the adequate handling of such unexpected testimony is unchartered territory: neither arbitral statutes, institutional rules nor the ever-expanding arbitral soft law addresses this important issue. This article reviews if and when arbitral tribunal should permit or reject such ‘out-of-scope’ testimony. The article establishes five clear-cut rules to deal with that issue.

scholarly journals Ad Hoc or Institutional Arbitration - A Clear-Cut Distinction? A Closer Look at Borderline Cases

2017 ◽  
Author(s):  
Ulrich G. Schroeter
Keyword(s):  
Ad Hoc ◽  
Theory And Practice ◽  
Present Contribution ◽  
Borderline Cases ◽  
Institutional Rules ◽  
Clear Cut ◽  
Definition Of ◽  
Core Characteristics ◽  
Insight Into ◽  
Mix And Match

It is generally accepted in both theory and practice of arbitration that there are two basic forms of arbitration, ad hoc and institutional. This long established dichotomy has rarely been questioned, and it has mostly worked well in international arbitration practice.The present contribution investigates the traditional distinction between ad hoc and institutional arbitration in more detail by looking at "borderline cases", i.e. constellations that cannot easily be allocated to one of these two categories. Four groups of borderline cases are discussed: (1) UNCITRAL arbitrations, in particular those administered by arbitral institutions; (2) cases in which the parties have chosen institutional rules, but not the issuing institution (and vice versa), (3) the modification of institutional rules by the parties and the identification of a possible "mandatory" core of institutional rules, and (4) "mix and match" (or "hybrid") arbitrations combining one arbitral institution's rules with the case's administration by a different arbitral institution. By identifying the factors that were decisive for these borderline cases being regarded as institutional or ad hoc, the article is trying to gain insight into the core characteristics underlying each arbitration category. Drawing on these insights, it develops and explains a novel definition of "institutional arbitration".

The Lavish Corporate Hospitality: The Lawful and Unlawful Interaction of Public Officials and Private Sector Actors — Law and the Court Praxis in Finland

2013 ◽  
Vol 21 (1) ◽  
pp. 59-84
Author(s):  
Johanna Peurala
Keyword(s):  
Public Sector ◽  
Public Relations ◽  
Private Sector ◽  
Case Law ◽  
Criminal Code ◽  
Soft Law ◽  
Business Sector ◽  
Public Officials ◽  
The Public ◽  
Clear Cut

Public officials can be offered hospitality, excursions, seminars or different kinds of benefits by the business sector. These kinds of benefits can be seen to be a customary practice or the management of public relations. Finnish law does not give any clear-cut answers when a certain benefit can be seen as lawful (as a gift) or unlawful (as a bribe). The aim of this research is to clarify, based on the Finnish Criminal Code, by Finnish case law, as well as soft law instruments, the thin line between unlawful and lawful benefits in this business–public sector interaction. The article also discusses the concept of the management of public relations which the Finnish courts have mentioned as the factor that can justify the benefits given to the public officials by business sector.

Part 2 Specific Issues of Arbitration in Brazil, 4 Settlement Agreements and the Role of the Arbitral Tribunal

2020 ◽  
Author(s):  
Coelho Eleonora ◽  
Leite Fabiana de Cerqueira
Keyword(s):  
Soft Law ◽  
Arbitral Tribunal ◽  
Legal Provisions ◽  
Settlement Agreement ◽  
Settlement Agreements

This chapter focuses on settlement agreements and the role of the arbitral tribunal. During the course of an arbitral proceeding, the parties may reach a settlement and, in this case, it is not the arbitrators who render a decision terminating the conflict, but the parties themselves resolve it. Although the parties have clear protagonism in creating a consensual solution, this does not mean that the arbitrators have no role in facilitating settlement. In fact, many national arbitration laws and soft law instruments interpret the arbitrators' mandate as to encompass some degree of involvement in settlement efforts — and Brazil is no exception. The Brazilian Arbitration Law (BAL) contains express provision in its article 21, requesting arbitrators to attempt to reconcile the parties. Also, arbitrators may render a consent award if the parties reach a settlement agreement. However, the wording of the legal provisions of the BAL does not clarify the extent of the arbitrators' role both in the attempt of conciliation of the parties and in the review of the settlement when to render an award by consent. The chapter then examines whether it is mandatory for arbitrators to attempt to reconcile the parties and whether there are limits to what settlement techniques can be applied by arbitrators. It also differentiates between a consent award and a termination order.

The use of private maritime guards as an innovative means to fulfil states duty to cooperate in the repression of maritime piracy. Part 1

2020 ◽  
Vol 01 (02) ◽  
Author(s):  
Katinka Svanberg ◽  
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Legal Framework ◽  
Legal Positivism ◽  
Soft Law ◽  
Maritime Piracy ◽  
Armed Robbery ◽  
Legal Rules ◽  
Clear Cut ◽  
Additional Layer

This article discusses the use of PCASPs as an alternative or additional layer of protection on board ships in the fight against maritime piracy and armed robbery at sea from an international law perspective based on legal positivism. A concern is that clear-cut, international legal rules are missing on PCASPs. A particular concern is the use of force by PCASPs. The IMO, the shipping- and PMSC industry have had to resort to soft law instruments and self-regulations. The perceived lack of legal rules concerning PCASPs and PMSCs has resulted in a lot of criticism. But does international law on maritime piracy need to develop binding international legal rules’ that are directly applicable to PCASPs? My findings are that the existing legal framework, in the Law of the Sea, SOLAS Convention, customary international law on self-defence together with the non-binding IMO guidelines and the shipping industry’s and PMSC’s self-regulations, as implemented by national laws, gives the necessary framework to adequately address the issue of PCASPs as protection against maritime piracy. The article describes maritime piracy, piracy hotspots and how intervention against piracy differs according to regions. It analyses the current legal framework on maritime piracy and armed robbery at sea in UNCLOS and the SUA Convention, flag-state jurisdiction and national laws. It defines “soft law” and goes through regulations on PCASPs from the Montreux Document and ICoC to regulations that directly address the use of PCASPs on board ships, as the IMO Guidelines, ISO Standards, the industries standard agreements and Guidance on the use of force.

Part III Practice and Procedure, 14 Advocacy in International Mining Disputes

2017 ◽  
Author(s):  
Burnett Henry G ◽  
Bret Louis-Alexis
Keyword(s):  
Expert Testimony ◽  
The Other ◽  
Arbitral Tribunal ◽  
Witness Testimony ◽  
Mining Sector ◽  
Key Issues

Parties involved in an international mining dispute will want to make sure they are not only adequately represented by counsel, but have the best advocates possible. The effective presentation of the client’s claims and/or defences by counsel generally includes written advocacy (pleadings, memorials, and post-hearing submissions, if any); conveying the client’s position (i.e., “telling the story”) through written witness testimony or examination of the other side’s witnesses; and putting forth expert testimony on topics where such testimony may be necessary to help the arbitral tribunal understand key issues including, almost invariably, damages. This chapter discusses key advocacy concepts as they relate to mining disputes, with a particular focus on damages and valuation issues relevant to disputes in the mining sector.

The use of private maritime guards as an innovative means to fulfil states’ duty to cooperate in the repression of maritime piracy. Part Two

2021 ◽  
Vol 02 (01) ◽  
Author(s):  
Katinka Svanberg ◽  
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Legal Framework ◽  
Legal Positivism ◽  
Soft Law ◽  
Maritime Piracy ◽  
Armed Robbery ◽  
Legal Rules ◽  
Clear Cut ◽  
Additional Layer

This article discusses the use of PCASPs as an alternative or additional layer of protection on board ships in the fight against maritime piracy and armed robbery at sea from an international law perspective based on legal positivism. A concern is that clear-cut, international legal rules are missing on PCASPs. A particular concern is the use of force by PCASPs. The IMO, the shipping- and PMSC industry have had to resort to soft-law instruments and self-regulations. The perceived lack of legal rules concerning PCASPs and PMSCs has resulted in a lot of criticism. But does international law on maritime piracy need to develop binding international legal rules’ that are directly applicable to PCASPs? My findings are that the existing legal framework, in the Law of the Sea, SOLAS Convention, customary international law on self-defence together with the non-binding IMO guidelines and the shipping industry’s and PMSC’s self-regulations, as implemented by national laws, gives the necessary framework to adequately address the issue of PCASPs as protection against maritime piracy. The article describes maritime piracy, piracy hotspots and how interventions against piracy differ according to regions. It analyses the current legal framework on maritime piracy and armed robbery at sea in UNCLOS and the SUA Convention, flag-state jurisdiction and national laws. It defines “soft-law” and goes through regulations on PCASPs from the Montreux Document and ICoC to regulations that directly address the use of PCASPs on board ships, as the IMO Guidelines, ISO Standards, the industries standard agreements and the Guidance on the use of force.

scholarly journals Arbitral Tribunal Power to Disqualify Unethical Counsel

2015 ◽  
Vol 4 (4) ◽  
pp. 15 ◽  
Author(s):  
Cristina Florescu
Keyword(s):  
Ethical Issues ◽  
Conflicts Of Interest ◽  
International Standards ◽  
Current Status ◽  
Soft Law ◽  
Arbitral Tribunal ◽  
Binding Effect ◽  
The Subject ◽  
The Right ◽  
Professional Guidelines

In specific matters of conflicts of interest ethical issues in connection with the parties' legal representatives could occur in the course of arbitration proceedings. The purpose of this paper is to identify and investigate the current status of the arbitral tribunals and arbitral institutions power to sanction counsel’s misconduct in the event of conflicts of interest. Parties have a fundamental right to choose the counsel and in the same time the right to an independent and impartial tribunal, therefore the source of the arbitral tribunal power to disqualify a counsel is a hot topic. There are no express provisions granting arbitrators such power, only soft law instruments, but which have no binding effect as long as the parties do not agree on them. For these reasons, two renowned cases where international arbitral tribunals have dealt with the subject are examined. Developing “truly transnational” ethical rules and their implementation by the arbitral institutions might be a solution. Arbitral tribunals are establishing this issue on the basis of the undertaken and applied international soft law (professional guidelines) which gained credibility and popularity and also became accepted international standards in the arbitration field.

Shoulder Pain at Work: Causation Analysis

2017 ◽  
Vol 22 (1) ◽  
pp. 11-16
Author(s):  
Joel Weddington ◽  
Charles N. Brooks ◽  
Mark Melhorn ◽  
Christopher R. Brigham
Keyword(s):  
Epidemiological Data ◽  
Case Law ◽  
Individual Case ◽  
Shoulder Injury ◽  
Work Related ◽  
Clear Cut ◽  
The Individual ◽  
Causation Analysis ◽  
Injury Causation ◽  
Relevant Factors

Abstract In most cases of shoulder injury at work, causation analysis is not clear-cut and requires detailed, thoughtful, and time-consuming causation analysis; traditionally, physicians have approached this in a cursory manner, often presenting their findings as an opinion. An established method of causation analysis using six steps is outlined in the American College of Occupational and Environmental Medicine Guidelines and in the AMA Guides to the Evaluation of Disease and Injury Causation, Second Edition, as follows: 1) collect evidence of disease; 2) collect epidemiological data; 3) collect evidence of exposure; 4) collect other relevant factors; 5) evaluate the validity of the evidence; and 6) write a report with evaluation and conclusions. Evaluators also should recognize that thresholds for causation vary by state and are based on specific statutes or case law. Three cases illustrate evidence-based causation analysis using the six steps and illustrate how examiners can form well-founded opinions about whether a given condition is work related, nonoccupational, or some combination of these. An evaluator's causal conclusions should be rational, should be consistent with the facts of the individual case and medical literature, and should cite pertinent references. The opinion should be stated “to a reasonable degree of medical probability,” on a “more-probable-than-not” basis, or using a suitable phrase that meets the legal threshold in the applicable jurisdiction.

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