Between rags and riches: rethinking security for costs in international commercial arbitration

2021 ◽  
Vol 37 (4) ◽  
pp. 851-862
Author(s):  
Simon P Camilleri
Keyword(s):  
Traditional Approach ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Financial Position ◽  
The Impact

Abstract This article assesses the traditional approach adopted to making an order of security for costs in international arbitration, which focuses almost exclusively on the financial standing of the claimant. The article argues that this approach is inappropriate, and has the potential to undermine the purpose of the remedy itself; namely, to protect a respondent who has been dragged into an arbitration against his will, and may subsequently struggle to enforce a costs award against the claimant if he is successful in due course. The author therefore argues that the financial position of the respondent—and the impact of the proceedings on that respondent—should be hardwired into the assessment undertaken by arbitral tribunals when considering whether to order the claimant to provide security for the respondent’s costs.

Notes: To stay or not to stay? Admiralty proceedings after the International Arbitration Act 15 of 2017: Atakas Ticaret Ve Nakliyat AS v Glencore International AG

2021 ◽  
Vol 138 (1) ◽  
pp. 40-57
Author(s):  
Dusty-Lee Donnelly ◽  
Seshni Govindasamy
Keyword(s):  
Case Note ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
High Court ◽  
International Commercial Arbitration ◽  
The Republic ◽  
Model Law

The decision in Atakas Ticaret Ve Nakliyat AS v Glencore International AG 2019 (5) SA 379 (SCA) made important remarks to the effect that the discretion to effect a joinder to admiralty proceedings under s 5(1) of the Admiralty Jurisdiction Regulation Act 105 of 1983, and the discretion to refuse a stay of proceedings under s 7(1)(b) of the Act, are ‘untouched’ by art 8 of the UNCITRAL Model Law on International Arbitration that is incorporated under the International Arbitration Act 15 of 2017. The court reached this decision on the basis that, in terms of art 1(5), the Model Law does not affect other laws of the Republic under which matters may not be referred to arbitration, or may only be so referred subject to conditions. This case note analyses the nature and extent of the court’s discretion under art 8(1) of the Model Law, the argument for an implied repeal of s 7(1)(b) of the Admiralty Jurisdiction Regulation Act, the interpretation of art 1(5) of the Model Law, and the questions left unanswered by the judgment. It argues that although the Model Law does not automatically oust the jurisdiction of the high court exercising admiralty jurisdiction to hear a maritime claim, the court only retains a narrow discretion to refuse a stay of those proceedings when an international commercial arbitration agreement exists in respect of the dispute.

2 The 2015 Reform of Arbitration

2020 ◽  
Author(s):  
Oda Hiroshi
Keyword(s):  
Russian Federation ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
The Russian Federation ◽  
Institutional Aspects ◽  
The Law

This chapter discusses the 2015 Arbitral Reform. The arbitral reform, which started in 2011, culminated in two sets of laws adopted by Parliament and signed by the president on 25 December 2015. The package comprised the Law on Arbitration of the Russian Federation and the Law on the amendments to the Laws in relation to the adoption of the above law. The latter included amendments to the Law on Commercial Court Procedure and the Law on International Commercial Arbitration. On 27 December 2018, the Law on Arbitration was further amended. The power to grant license to perform functions of permanent arbitral institutions was shifted to the Ministry of Justice. One of the fundamental issues which were contested in the process of the reform was whether the existing regime of segregation of international and domestic arbitration should be abandoned altogether or should be maintained. With the strong opposition from experts of international commercial arbitration supported by the Codification Commission and the President’s Administration, the system of two separate laws, that is, the Law on Arbitration and the Law on International Commercial Arbitration, was maintained. However, organisational/institutional aspects of arbitration, including international arbitration, are now regulated by the Law on Arbitration.

scholarly journals Accessibility of discoursal data in critical genre analysis: international commercial arbitration practice

2010 ◽  
Vol 10 (3) ◽  
pp. 465-483 ◽  
Author(s):  
Vijay K. Bhatia
Keyword(s):  
Professional Practice ◽  
Interdisciplinary Research ◽  
Professional Practices ◽  
Genre Analysis ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Research Teams ◽  
International Commercial Arbitration ◽  
Access To Data ◽  
International Initiative

Critical genre analysis, especially targeting specific professional practices, crucially depends on the availability of discursive data from the professional practice under investigation, which is not always easily accessible. In this paper, I take up a typical example of this kind of difficulty focusing on an international initiative, in which I have been involved for the last several years, with collaboration from more than twenty research teams from as many countries. By drawing on discoursal data (narrative, documentary and interactional), it is possible to look at the motivations for interdiscursive processes and procedures. However, the so-called duty to strict confidentiality observed and practiced in international arbitration practice makes it difficult to get access to data from arbitration practice and thus to undertake such critical genre-based interdisciplinary research. In this paper, I will focus on some of the important issues involved in this study of professional practice and discuss implications of this generally assumed requirement of confidentiality, and its implications for research in and development of the institution of arbitration. I also propose alternatives to collection of data from arbitration practice to make such research possible.

The Procedural Rules Governing the Production of Documentary Evidence in International Arbitration – As Applied in Practice

2009 ◽  
Vol 8 (1) ◽  
pp. 27-90
Author(s):  
Nathan O'Malley
Keyword(s):  
Judicial Review ◽  
Case Law ◽  
Documentary Evidence ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
The World ◽  
The Common ◽  
Over Time

AbstractThis article considers the provisions of the IBA Rules on the Taking of Evidence in International Commercial Arbitration pertaining to documentary evidence, Articles 2, 3, and 9. The IBA Rules have emerged over time as a compromise set of standards appropriate for international arbitration and are widely used by tribunals throughout the world. This piece provides examples of arbitral case law in respect of the application of the Rules to issues concerning the taking and admission of documentary evidence. Moreover, the article also addresses issues regarding the role of the IBA Rules in the judicial review of arbitral awards, and their use in investor-state arbitration as opposed to international commercial arbitration. The goal of this article is to provide a thorough, case based commentary on the common approach used by tribunals in this area of procedure.

scholarly journals Reforming the Legislation on the International Commercial Arbitration of Ukraine: Realities or Myths

2021 ◽  
Vol 4 (3) ◽  
pp. 117-128
Keyword(s):  
Dispute Settlement ◽  
The Other ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
National Courts ◽  
The One ◽  
Intergovernmental Organisations

International commercial arbitration (ICA) is an alternative way to resolve foreign economic disputes. Initially, arbitration itself was seen as a neutral court in which the parties to the dispute were independent of national courts. Arbitration agreements and decisions must be recognised by national courts without any complications or review procedures. Although granting commercial parties some independence to agree that their dispute will be considered by independent arbitrators is a key principle in ICA, the struggle for supremacy between national laws and national courts on the one hand and the autonomy of the parties and the independence of the international arbitration system on the other continue. Over the years, national laws have sought to control, regulate, interfere with, or support ICA in various ways. To counter attempts to ‘localise’ ICA and promote equality in this area, private, professional institutions and international and intergovernmental organisations have developed a significant body of law designed to ensure self-government and dispute settlement procedures in ICA. Nevertheless, international commercial arbitration cannot exist independently of national jurisdictions. Examining the activities of ICA, it can be seen that the importance and impact of national arbitration laws and national judicial supervision are significantly reduced, but the lex fori still plays an important role in arbitration. Thus, the reform of the normative regulation of international arbitration also affected Ukraine. The article analyses the radical changes proposed by the legislator regarding the procedure for establishing institutional arbitrations, expanding the arbitrability of disputes.

The Impact of (Mis)communication on International Commercial Arbitration

2020 ◽  
Author(s):  
Carolina Arlota
Keyword(s):  
International Business ◽  
Empirical Studies ◽  
Hague Convention ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Legal Traditions ◽  
Recognition And Enforcement ◽  
Different Cultures ◽  
The Impact ◽  
Principal Method

International commercial arbitration is often considered the principal method for solving disputes between international business parties mainly because of its final and binding nature. International commercial arbitration is a valued alternative to litigation in foreign courts, while also avoiding simultaneous legal claims in different jurisdictions around the globe. In this context, effective communication among private parties, which is defined as steering clear of potential miscommunications among them in international business transactions, is essential for the negotiation of successful arbitration agreements and efficient international arbitral proceedings. Complexities concerning the communication among parties located in different countries—with different cultures and distinct legal traditions—abound. Such complexities are informative of the main stages of international commercial arbitration, namely, before reaching the negotiation table, during the writing of the arbitration agreement, and after a legal dispute arises. This topic has not been subject to comprehensive analysis, despite its significant impact on the parties’ business needs and related optimization of their interests. In addition, trending relevant issues in the field include the recently signed Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, the increasing judicialization of international arbitration proceedings, the increasing use of artificial intelligence and empirical studies in international commercial arbitration.

2 Buenos Aires

2014 ◽  
Author(s):  
Garro Alejandro M ◽  
Fernández Michael
Keyword(s):  
Buenos Aires ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Positive Approach ◽  
Negative Perception ◽  
International Commercial Arbitration

This chapter evaluates the merits of Buenos Aires as a venue for international arbitration proceedings. It discusses the history and development of arbitration in Argentina; the processes and rules involved as well as the role of courts in the conduct of arbitration proceedings; and rules for arbitral awards. It concludes that arbitration in Argentina has its pitfalls, especially in light of the negative perception of arbitration brought about by numerous investor complaints against Argentina and the fact that the country continues to operate with an obsolete statutory framework in matters of arbitration in general, with very little attention paid to the singularity of international commercial arbitration. Arbitration law in Argentina fails to embrace a positive approach towards the enforcement of domestic as well as foreign arbitration agreements and arbitral awards.

The Three Ages of International Commercial Arbitration

2021 ◽  
Author(s):  
Mikaël Schinazi
Keyword(s):  
International Law ◽  
Legal History ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
New Approaches ◽  
Wide Range ◽  
History Of ◽  
Key Features ◽  
Modern Era

Drawing on a wide range of previously unpublished sources, this unique history of international commercial arbitration in the modern era identifies three periods in its development: the Age of Aspirations (c. 1780–1920), the Age of Institutionalization (1920s–1950s), and the Age of Autonomy (1950s–present). Mikaël Schinazi analyzes the key features of each period, arguing that the history of international commercial arbitration has oscillated between moments of renewal and anxiety. During periods of renewal, new approaches, instruments, and institutions were developed to carry international commercial arbitration forward. These developments were then reined in during periods of anxiety, for fear that international arbitration might be overstepping its bounds. The resulting tension between renewal and anxiety is a key thread running through the evolution of international commercial arbitration. This book fills a key gap in the scholarship for anyone interested in the fields of international arbitration, legal history, and international law.

The ‘Judicialization’ of International Commercial Arbitration: Pitfall or Virtue?

2017 ◽  
Vol 30 (2) ◽  
pp. 405-434 ◽  
Author(s):  
LEON TRAKMAN ◽  
HUGH MONTGOMERY
Keyword(s):  
Best Practice ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Party Autonomy ◽  
International Commercial Arbitration ◽  
Global Concern ◽  
Contextual Assessment ◽  
Law And Justice ◽  
The Cost ◽  
Commercial Disputes

AbstractThis article critiques the global concern that international commercial arbitration (ICA) is becoming increasingly ‘judicialized’, addressing the growing sentiment in ICA that arbitral proceedings are too lengthy, expensive, and complex. Assuming a contrarian perspective, it argues that attempts to address the cost and length of arbitration proceedings ought not to undermine the value of finely reasoned arbitral decisions grounded in law and justice. It also argues for a contextual assessment of ICA that extends beyond the debate over ‘judicialization’.Using global illustrations and ICA developments in Australia as an initial guide, this article suggests that balancing party autonomy, accountability, efficiency,andfairness in ICA can help resolve these growing criticisms of ‘judicialization’. Ultimately, the reform of international arbitration should take place within a framework of ‘international best practice’ that is both analytical in nature and functional in operation. As such, ICA should not only be affordable and expeditious, it should serve as a legitimate and effective method of resolving international commercial disputes. In addition, it should balance the virtue of transparent proceedings against the need to respect the confidences of the parties.

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