The Doctrine of Res Judicata Before International Commercial Arbitral Tribunals

2016 ◽  
Author(s):  
Schaffstein Silja
Keyword(s):  
International Law ◽  
National Court ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Conflict Of Laws ◽  
International Commercial Arbitration ◽  
Res Judicata ◽  
Central Hypothesis ◽  
Private And Public ◽  
Two Stages

There are currently no rules in international commercial arbitration law and practice assuring the coordination between arbitral awards and/or national court judgments rendered in identical or related cases. This lack of coordination is unsatisfactory, particularly in light of the ever-growing tendency of parties to submit their commercial disputes to international commercial arbitration and the increasing complexity of international arbitration. Today, international commercial transactions and the disputes to which they give rise regularly involve multiple parties, contracts and issues. As a consequence, these disputes (or certain aspects of these disputes) are increasingly tried in multiple fora. In such circumstances, difficult issues regarding the res judicata effects of prior judgments or awards are likely to arise before international commercial arbitral tribunals. The central hypothesis underlying this research is that transnational principles of res judicata should be elaborated for international commercial arbitral tribunals. This solution is justified for several reasons. First, it is justified given the differences among domestic laws regarding res judicata and the difficulties surrounding the formulation of appropriate conflict-of-laws rules. Second, it avoids inappropriate analogies between international arbitration proceedings and litigation. Finally, the solution provides guidance and ensures a certain degree of fairness, certainty and predictability, which is expected by arbitration users. This research seeks to achieve its aims in two stages: Part One examines the doctrine of res judicata in litigation, analysing the doctrine as applied in different domestic laws, as well as in private and public international law. Part Two aims to determine whether and to what extent the res judicata doctrine may be applied by international commercial arbitral tribunals. It aims to demonstrate that transnational principles of res judicata should be elaborated and will seek to formulate such principles.

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.

Part III International Arbitration Agreements: Issues and Perspectives, 7 Arbitrability Decisions Before, During, and After Arbitration

2016 ◽  
Author(s):  
Barceló John J
Keyword(s):  
National Court ◽  
Essential Elements ◽  
The Other ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Process Stage ◽  
Litigation Process

The arbitration agreement is the cornerstone of international commercial arbitration. Disputes over the agreement’s existence, validity, and scope-the essential elements for a controversy to be arbitrable-arise at each of the three fundamental stages of the arbitration/litigation process. This chapter discusses the arbitrability issue at each stage of the arbitration/litigation process. Stage One, before a national court where one party seeks to litigate the merits of the dispute and the other party petitions to have the dispute sent to arbitration. Stage Two, when the parties are before the arbitrable tribunal itself. Stage Three, when the party who wins an award asks a national court to enforce it, or the party who loses asks a national court to set it aside or refuse to recognize and enforce it.

Part II The Doctrine of Res Judicata in International Commercial Arbitration, 5 Search for an Appropriate Approach

2016 ◽  
Author(s):  
Schaffstein Silja
Keyword(s):  
Comparative Law ◽  
Commercial Arbitration ◽  
Conflict Of Laws ◽  
International Commercial Arbitration ◽  
Res Judicata ◽  
The Law

This chapter presents possible approaches in dealing with the problem of the res judicata doctrine in international commercial arbitration, namely the conflict-of-laws approach, comparative law approach, and transnational approach. The conflict-of-laws approach defines clear and generally accepted conflicts-of-law rules allowing arbitrators to determine the law or laws governing res judicata. The determination of conflict-of-laws rules will depend on the characterisation of res judicata as being of substantive or procedural nature. The comparative law approach compares different domestic laws to determine generally accepted res judicata principles common to a majority of states. Lastly, the transnational approach formulates uniform, autonomous res judicata principles that are better adapted to the particularities of international commercial arbitration created for litigation.

Part 1 General and Special Reports, 7 International Commercial Arbitration: Perspective on the Hague Principles in International Commercial Arbitration

2021 ◽  
Author(s):  
Gama Lauro ◽  
Girsberger Daniel ◽  
Rodríguez José Antonio Moreno
Keyword(s):  
International Law ◽  
State Court ◽  
Private International Law ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Choice Of Law ◽  
International Commercial Arbitration ◽  
Party Choice ◽  
The Hague ◽  
Model Law

This chapter studies how the private international law rules of most jurisdictions have traditionally addressed State court litigation, without considering the specificities of international arbitration. Many nations have now created their own legislation for international arbitration or adopted the UNCITRAL Model Law on International Commercial Arbitration. These laws regularly contain their own rules dealing with parties’ choice of law on the merits. The chapter then explores choice of law in international arbitration with a particular view on the Hague Principles which are, as paragraph 4 of their Preamble discloses, intended to apply equally to courts and arbitral tribunals. It analyses the approach arbitral tribunals have taken when confronted with choice of law issues, and particularly a party choice of the law applicable to the merits of the dispute. The chapter also assesses whether it is correct and if so, for which reasons, and in which way, that commercial parties have a larger autonomy in arbitration, compared to litigation, to choose non-State rules of law, and which types of rules they may choose. Finally, it demonstrates why, how, and to what extent the Hague Principles can contribute to define, delineate, interpret, and supplement existing (conflict of law) regimes in the field of international arbitration.

scholarly journals Vanishing Set-Aside Authority in International Commercial Arbitration

2018 ◽  
Vol 18 (1) ◽  
pp. 127-154
Author(s):  
Meng Chen ◽  
Chengzhi Wang
Keyword(s):  
International Law ◽  
Common Phenomenon ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
National Courts

Summary Traditional set-aside theory is subject to considerable challenges as a result of an uncompromising trend towards autonomy and internationalism in international arbitration. The silence and ambiguity of international law regarding enforcement of set-aside arbitral awards allow some states to abandon their own set-aside authority or ignore set-aside decisions made by competent courts. This article presents a range of evidence that demonstrates the enforcement of set-aside arbitral awards has become a common phenomenon. This article first introduces robust academic debates regarding set-aside authority. Then this article exposes omission and ambiguity in the legal source, which leads to confusion in enforcement proceedings of set-aside arbitral awards. This article describes and analyses selected cases and practical data in order to summarize the approaches taken by national courts when reviewing foreign set-aside decisions. Finally, this article briefly evaluates the most promising solutions to the contradictory enforcement proceedings of set-aside arbitral awards.

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.

International Arbitration as Private and Public Good

2020 ◽  
pp. 397-420
Author(s):  
Ralf Michaels
Keyword(s):  
Public Good ◽  
Dispute Resolution ◽  
Public Law ◽  
State Courts ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Investment Arbitration ◽  
Public Nature ◽  
Private And Public ◽  
Dispute Resolution Mechanism

This chapter addresses the private and public nature of international arbitration. International arbitration is often characterized as an exclusively private dispute resolution mechanism, sharply distinguished from litigation, which is viewed as public because it is provided by the state. This is clearest for commercial arbitration. Commercial arbitration is initiated on the basis of a private arrangement: a party cannot be subjected to arbitration unless they agreed to it previously. Investment arbitration is a little more difficult to categorize, given its emergence from public international law, its involvement of states as parties, and the frequency with which it deals with public law measures. Indeed, significant differences exist between commercial and investment arbitration. Nevertheless, it too is characterized as a private dispute resolution mechanism at least in the sense that it is resolved by institutions other than state courts. The chapter then evaluates whether arbitration is a private or public good. It also demonstrates the ways in which adjudication by courts combines elements of private and public goods, before finding a parallel combination of private and public good aspects in international arbitration.

Part V International Dispute Resolution, 19 International Commercial Arbitration

2015 ◽  
Keyword(s):  
Dispute Resolution ◽  
Commercial Arbitration ◽  
Conflict Of Laws ◽  
International Commercial Arbitration ◽  
National Courts ◽  
International Dispute ◽  
Recognition And Enforcement ◽  
Model Law ◽  
The Relationship ◽  
Distinguishing Features

This chapter examines the nature of international commercial arbitration and its distinguishing features; the harmonisation of the law of international commercial arbitration; international arbitration and the conflict of laws; the review of arbitral awards; and the recognition and enforcement of arbitral awards. Consideration is given to the contribution made by the UNCITRAL Model law on International Commercial Arbitration and to the rules of various arbitral institutions (such as the ICC) to the harmonisation of arbitral law and practice. Also examined is the relationship between arbitration and national courts and national law, particularly in the context of the debate over delocalisation.

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