International Arbitration as Private and Public Good

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.

Civil Society and International Investment Arbitration

The Oxford Handbook of International Arbitration ◽

10.1093/law/9780198796190.003.0012 ◽

2020 ◽

pp. 303-327

Author(s):

Nathalie Bernasconi ◽

Martin Dietrich Brauch ◽

Howard Mann

Keyword(s):

Civil Society ◽

Dispute Settlement ◽

International Investment ◽

Public Law ◽

International Investment Agreements

Commercial Arbitration ◽

Investment Treaty ◽

Investment Arbitration ◽

This chapter discusses the role of civil society in international investment arbitration. Much of the civil society focus on international arbitration has been on the investor–state dispute settlement (ISDS) process included in many international investment agreements. However, the historical role of commercial arbitration as the progenitor of investment treaty arbitration and the procedural and structural links between ISDS and commercial arbitration are important for the discussions on civil society engagement. Civil society recognized early on the problems of using a commercial arbitration model for investment arbitration, which involves public law matters, and concluded that this created a misappropriation of a tool that up to that time had only been used for private commercial purposes or very well-defined state-to-state purposes. The crossing of these purposes and actors to create public law arbitration between investors and states is what created this sense of misappropriation and led to a spotlight being shone on the regime by civil society. The chapter then looks back at the beginnings of civil society engagement with international arbitration through the experience with investment treaties, including the advancement of transparency and the ability to submit amicus curiae briefs.

The International Rule of Law in Latin American Investment Arbitration: UNASUR’s Advances in Arbitrator Appointment and Disqualification

The Journal of World Investment & Trade ◽

10.1163/22119000-12340009 ◽

2016 ◽

Vol 17 (4) ◽

pp. 681-699 ◽

Cited By ~ 1

Author(s):

José Manuel Álvarez Zárate ◽

Rebecca Pendleton

Keyword(s):

Dispute Resolution ◽

Latin American ◽

Rule Of Law ◽

Alternative Dispute Resolution ◽

South American ◽

Investment Arbitration ◽

The Creation ◽

Democratic Principles ◽

International Rule

In 2008, Ecuador raised the need for the creation of an alternative dispute resolution mechanism within the Union of South American Nations (UNASUR). Any system of investment arbitration should comply with democratic principles and the international rule of law which provide predictability, transparency and legitimacy for arbitral decisions and thus should avoid political and economic bias. This article shows Latin America’s historical inclination towards arbitration and focuses on the 2014 UNASUR Project’s proposed method of appointment and disqualification of arbitrators, and its approach to the execution of awards. By way of comparison with International Centre for Settlement of Investment Disputes (ICSID) tribunals, the article goes on to suggest how an application of the international rule of law could help guide and structure arbitrators’ behaviours in the proposed UNASUR Project as well as under the current ICSID framework to avoid arbitrators’ deviation from the law and prevent their creative, independent interpretations.

Harmonization of Arbitration Laws in some Asian and European Countries

Pro Futuro ◽

10.26521/profuturo/2020/4/9465 ◽

2021 ◽

Vol 10 (4) ◽

Author(s):

Gauri Nirwal

Keyword(s):

Public Policy ◽

International Trade ◽

Dispute Resolution ◽

European Countries ◽

The Public ◽

The World ◽

Recognition And Enforcement ◽

The Relationship

The present paper studies the relationship between domestic and international arbitration laws and the harmonization factor amongst some Asian and European jurisdictions. During the last decades, there has been a significant change and globalization in the world and with the expansion of businesses and trade a better dispute resolution mechanism is required in order to maintain the harmony in international trade. It has become a necessity to balance the domestic arbitration laws with the international ones. This brief paper identifies and comments on some of the areas where differences remain including differences in recognition and enforcement of arbitral awards in various jurisdictions over the public policy defence, and where further examination and research to reach and solve disputes amicably might be useful.

ODREĐIVANJE VISINE NAKNADE ŠTETE U MEĐUNARODNOJ INVESTICIJSKOJ ARBITRAŽI S OBZIROM NA UTVRĐENU POVREDU I METODU IZRAČUNA

Pravni vjesnik ◽

10.25234/pv/10178 ◽

2021 ◽

Vol 37 (2) ◽

pp. 105-136

Author(s):

Jadranka Osrečak

Keyword(s):

Dispute Resolution ◽

Alternative Dispute Resolution ◽

Case Law ◽

International Investment ◽

Legal Issues ◽

Investment Arbitration ◽

Inclusive Approach ◽

Arbitration Proceeding ◽

Dispute Resolution Mechanism

International investment arbitration as an alternative dispute resolution mechanism for resolving disputes between foreign investors and host states is also a favourite dispute resolution for investors. It consist of three parts, all of which can be resolved separately. These are jurisdiction, merits and damages. Consequently, it is possible for a tribunal to render one, two or even three arbitral awards, depending on the tribunal decision to bifurcate/trifurcate the proceedings or not. This shows the complexity of each of the stages of the arbitration proceeding. The paper deals with the issue of reparation, specifically compensation for damage caused as the main form of reparation for damage. It gives an overview of the legal issues affecting the amount of awarded damages, the main methods for calculating damages, as well as the applicable case-law and statistics in relation to the legal issues and calculating methods. The paper argues that only a proactive and inclusive approach in respect to determining damages including a detailed fact analysis for legal qualification of the dispute and determination of the best damages assessment methods, can give satisfactory results.

Part II Ambit of Protection, 4 Parallel Proceedings

10.1093/law/9780199676798.003.0004 ◽

2017 ◽

Author(s):

McLachlan Campbell ◽

Shore Laurence ◽

Weiniger Matthew

Keyword(s):

Dispute Resolution ◽

State Courts ◽

Breach Of Contract ◽

The Road ◽

Res Judicata ◽

Investment Treaty ◽

Investment Arbitration ◽

The Impact ◽

The Relationship ◽

Investment Treaty Arbitration

Chapter 4 deals with a complex set of problems that have arisen in determining the relationship between parallel claims in investment arbitration and other forms of dispute resolution, including proceedings in host State courts. Five issues which arbitral tribunals have had to confront in considering the impact of other forms of dispute resolution upon their jurisdiction are explored in particular: (1) the distinction between breach of contract and breach of treaty; (2) election, waiver, and ‘fork in the road’; (3) prior resort to local remedies; (4) internationalised contract claims and ‘umbrella clauses’; and (5) parallel treaty arbitration. The chapter considers the extent to which the general doctrines of lis pendens, res judicata, election, waiver, and abuse of process are capable of application in investment treaty arbitration.

Part I Introduction, 1 Introduction

Practitioner's Handbook on International Commercial Arbitration ◽

10.1093/law/9780198784807.003.0001 ◽

2019 ◽

Author(s):

Baumann Antje ◽

Pfitzner Tanja V

Keyword(s):

Dispute Resolution ◽

Ad Hoc ◽

General Structure ◽

Historical Background ◽

Party Autonomy ◽

Applicable Law ◽

Arbitral Proceedings ◽

Substantive Law

This introduction discusses arbitration as a method for resolving disputes. It first provides an overview of the advantages of arbitration as a dispute resolution mechanism and a brief historical background on the development of modern international arbitration before exploring the effects of arbitration agreements, taking into account the applicable law for the question of arbitrability (objective arbitrability and subjective arbitrability). It then considers two options between which parties can choose when deciding to settle their dispute by arbitration: institutional arbitration and ad hoc arbitration. It also analyses the parties’ right to choose—based on the principle of party autonomy—the place and language of arbitration, the substantive law applicable to the merits of the dispute, and number of arbitrators. Finally, it explains the applicable rules and general structure of arbitral proceedings as well as the enforceability of arbitral awards.

What Is Wrong with Investment Arbitration? Evidence from a Set of Behavioural Experiments

European Journal of International Law ◽

10.1093/ejil/chaa029 ◽

2020 ◽

Vol 31 (2) ◽

pp. 405-428

Author(s):

Maria Laura Marceddu ◽

Pietro Ortolani

Keyword(s):

Public Opinion ◽

Dispute Resolution ◽

Dispute Settlement ◽

The European Union ◽

Political Debate ◽

Current Form ◽

Investment Arbitration ◽

Behavioural Experiments ◽

Public Criticism

Abstract Investment arbitration has attracted growing criticism both in academia and in the general political debate. The system has been criticized by groups and stakeholders with very different agendas – from academics to anti-globalization activists, from alt-right groups to policy-makers. While sharing a common aversion to such dispute resolution mechanism, these groups do not generally take the same viewpoints, and the same type of criticism could originate from different political and theoretical underpinnings. The current efforts to reform investor-state dispute settlement, undertaken both by the European Union and by the United Nations Commission on International Trade Law, constitute to a large extent an attempt to respond to the aforementioned public criticism. However, in spite of the growing importance of the topic in the public debate, reform discussions have been predominantly, if not exclusively, focused on states and their roles in, and their expectations towards, investment arbitration. Public opinion, conversely, remains largely overlooked. To fill this gap, this research devises an experimental approach to understand the roots of public criticism(s) against investment arbitration. In so doing, it aims to generate a constructive, timely and accessible empirical analysis of the theoretical underpinnings of ISDS criticisms, providing an integrated guide to one of the most heated debates in international economic law today. The main purpose is to understand which are the points of friction (real or perceived) that trigger public criticism against investment arbitration and, in the light of this information, whether this dispute resolution mechanism should be maintained in its current form, partially reformed or rejected entirely. To this end, the article presents the results of the first-ever set of behavioural experiments concerning ISDS and public opinion.

International Commercial Arbitration: History, Modernity, Attempt to Look into the Future

Lex Russica ◽

10.17803/1729-5920.2020.168.11.157-165 ◽

2020 ◽

pp. 157-165

Author(s):

G. D. Uletova ◽

N. V. Kanishevskaya ◽

A. A. Kukuev

Keyword(s):

Dispute Resolution ◽

Point Of View ◽

International Standards ◽

State Courts ◽

Commercial Arbitration ◽

International Commercial Arbitration ◽

Existing Problems ◽

Domestic Jurisdiction ◽

The Will ◽

And Control

The paper is a review of the textbook "International Commercial Arbitration", prepared by a group of authors under the scientific editorship of leading experts in the field of alternative dispute resolution, i.e. O.Yu. Skvortsov, M.Yu. Savranskiy, G. V. Sevastyanov. The significance of this publication is due to the need to develop a sustainable pro-arbitration approach in Russia, strengthen contractual principles in the field of legal conflict resolution, and develop international commercial arbitration (hereinafter referred to as the ICA) as an important component of increasing the attractiveness and competitiveness of the Russian jurisdiction. Legal science representatives and practicing lawyers have been in an active discussion about the role of arbitration institutions and arbitrators in modern civil commerce, the nature of arbitration, effective forms and methods (models) of interaction between state justice and arbitration, the limits of assistance and control of state courts in relation to arbitration courts, as well as the limits of the will of civil commerce participants in choosing forms and methods for resolving legal conflicts, and the importance for Russia, in the conditions of new challenges in the economy, and formation of a balanced Pro-arbitration policy. The reviewed book is the result of serious and very deep study of the ICA history and its contemporary state, all its major institutions. It contains the latest information about the most important directions of its modernization from the point of view of international standards and in the context of the Russian arbitration reform, demanded by both domestic and foreign business. The comparative legal research method chosen by the authors and reference to the best practices in the field under study made it possible not only to identify problems, current challenges and new trends in the field of arbitration, but also to propose a set of measures to solve existing problems in order to increase the role and authority of the ICA in Russia, increase confidence in the arbitration form of dispute resolution by state courts, expand the arbitrability of disputes, and increase the competitiveness of domestic jurisdiction.

Latin American Opposition to Mandatory Arbitration in Tax Treaties

Florida Tax Review ◽

10.5744/ftr.2019.1591 ◽

2021 ◽

Vol 22 (3) ◽

Author(s):

Yariv Brauner

Keyword(s):

Developing Countries ◽

Dispute Resolution ◽

Latin American ◽

Tax Treaties ◽

International Tax ◽

Latin American Countries

The international tax regime has recently made large strides toward a reform of its dispute resolution mechanism. Long-anticipated, mandatory tax treaty arbitration is finally gaining legitimacy beyond limited use by a few countries. Yet, the opposition to international arbitration among developing countries, led by Latin American countries, has not waned. This Article tracks this opposition to its origins and argues that it is misguided in the case of tax treaty arbitration, which such countries should rather generally support.

Part 2 Specific Issues of Arbitration in Brazil, 14 Stock Corporation Arbitration

International Arbitration: Law and Practice in Brazil ◽

10.1093/law/9780198840114.003.0014 ◽

2020 ◽

Author(s):

Sester Peter ◽

Azevedo Luis André

Keyword(s):

Dispute Resolution ◽

Legal Certainty ◽

Market Segments ◽

Commercial Arbitration ◽

The Core ◽

Level Ii ◽

Corporation Law ◽

Distinct Features ◽

Stock Corporation

This chapter assesses stock corporate arbitration. Corporate arbitration has distinct features compared to other segments of Commercial Arbitration. This is particularly true if listed corporations provide mandatory shareholder arbitration in their bylaws. In order to serve as an effective dispute resolution mechanism, one capable of providing consistent decisions and legal certainty, corporate arbitration needs to fulfil two conditions: first, to produce, at least in some cases, an award with erga omnes or extra partes effect; and second, to exclude conflicting awards on identical disputes referring to the same company and identical facts. Developing an effective framework for stock corporation arbitration is one of the biggest challenges for Commercial Arbitration in Brazil today. According to the listing rules of Brazil's sole equity exchange (B3), corporations listed in the market segments Novo Mercado or Level II must adopt arbitration clauses in their corporate bylaws. Hence, over 150 Brazilian stock corporations impose mandatory shareholder arbitration on their shareholders. The Brazilian Corporation Law (BCL) explicitly permits these arbitration clauses. The chapter then explains why the core principles of Commercial Arbitration do not straightforwardly justify the erga omnes effect of arbitral awards, and discusses several proposals aiming to create collective shareholder arbitration in Brazil.