Part III Investment Disputes and Political Risk, 9 Mediation and Conciliation of Investment Disputes

2020 ◽  
Author(s):  
Rubins Noah ◽  
Papanastasiou Thomas-Nektarios ◽  
Kinsella N Stephan
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Political Risk ◽  
International Arbitration ◽  
The Face ◽  
Investment Treaties

Not all investment-related disputes are resolved through fully adversarial processes. In fact, both private businesses and governments are increasingly turning to various forms of mediation and conciliation in the face of serious disagreements rather than resorting immediately to international arbitration. A number of investment treaties also mention the possibility of alternative dispute resolution procedures, although such procedures are rarely if ever mandatory. This chapter addresses different alternatives to arbitration and litigation, with emphasis on the rather fine distinctions between them. It also discusses the methods by which mediation and conciliation may be imposed as a mandatory step preceding arbitration or litigation, with particular attention to investment contracts.

15 Dispute Resolution in Project Finance Transactions

2015 ◽  
Author(s):  
Nolan Michael ◽  
Canning Tom ◽  
Culbertson Erin ◽  
Hogwood Emma ◽  
Kinninmont Paul
Keyword(s):  
Risk Factors ◽  
Dispute Resolution ◽  
Political Risk ◽  
Project Finance ◽  
International Arbitration ◽  
Advantages And Disadvantages ◽  
Cross Border ◽  
Additional Protection ◽  
Project Participants ◽  
Investment Treaties

Dispute resolution mechanisms in the project finance context are a means of enforcing the allocation of risksamong a project’s many participants. Swift, flexible, final, and enforceabledispute resolution mechanisms allow a project’s intended risk allocations to be maintained. This chapter identifies various dispute resolution mechanisms available to project participants. Much of the chapter is devoted to exploring the advantages and disadvantages of two dispute resolution regimes—litigation and international arbitration—including looking at enforcement. It considers how investment treaties provide additional protection against political risk factors faced by cross-border projects and describes typical dispute resolution fora(such as ICSID)for investor–state disputes. The chapter also provides a ‘toolkit’ for drafting dispute resolution provisions designed to achieve participants’ goals.

KEWENANGAN PENGADILAN DALAM PEMBATALAN PUTUSAN ARBITRASE INTERNASIONAL DI INDONESIA

2017 ◽  
Vol 5 (2) ◽  
pp. 26
Author(s):  
Yuanita Permatasari ◽  
Pranoto ,
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
District Court ◽  
International Arbitration ◽  
Legal Research ◽  
Recognition And Enforcement ◽  
Materials Used ◽  
Legal Substances ◽  
Arbitration Award

<p>Abstract<br />This article aims to find out the recognition and enforcement of international arbitration award in Indonesia, as well as the authority of the courts in annulment the international arbitration award in Indonesia. This research is a normative and prescriptive legal research. The type and source of materials used is the source of secondary legal material. The legal substances used in this study are of two kinds, namely primary legal materials and secondary legal materials. The method of collecting legal materials in this study is obtained through assessment of existing libraries, books, law journals, and court awards. Based on the result of the discussion, it can be concluded: Firstly, the international arbitration award can be recognized and enforced if the award is registered and obtain an execution from the Central Jakarta District Court. International arbitration rulings can only be recognized and enforced if they full fil the conditions in Article 66 of Arbitration and Alternative Dispute Resolution law. Second, the international arbitration award is final and binding. However, in reality many international arbitration awards are requested for annulment to the Court in Indonesia.</p><p>Keywords: international arbitration award, annulment of international arbitration award, enforcement of international arbitration award</p><p>Abstrak<br />Artikel ini bertujuan untuk mengetahui pengakuan dan pelaksanaan putusan arbitrase internasional di Indonesia, serta kewenangan pengadilan dalam membatalkan putusan arbitrase internasional di Indonesia. Metode penelitian yang digunakan adalah penelitian hukum normatif bersifat preskriptif. Pendekatan yang digunakan penulis adalah pendekatan kasus. Sumber bahan hukum yang digunakan adalah bahan hukum primer dan bahan hukum sekunder, dengan teknik analisis bahan hukum menggunakan metode silogisme dan interpretasi dengan menggunakan pola berpikir deduktif. Berdasarkan hasil pembahasan dapat disimpulkan: Pertama, agar putusan arbitrase internasional dapat diakui dan dilaksanakan, maka putusan tersebut harus terlebih dahulu didaftarkan dan memperoleh exequatur dari Pengadilan Negeri Jakarta Pusat. Putusan arbitrase internasional hanya dapat diakui dan dilaksanakan apabila memenuhi syarat-syarat yang ditentukan dalam Pasal 66 Undang-Undang Nomor. 30 Tahun 1999 tentang Arbitrase dan Alternatif Penyelesaian Sengketa. Kedua, putusan arbitrase internasional bersifat final and binding. Sehingga, putusan arbitrase internasional tidak dapat diajukan upaya pembatalan putusan arbitrase. Namun, dalam realitanya banyak putusan arbitrase internasional yang dimintakan pembatalannya kepada Pengadilan di Indonesia.</p><p>Kata Kunci: putusan arbitrase internasional, pembatalan putusan arbitrase internasional, pelaksanaan putusan arbitrase internasional</p>

Part III Practice and Procedure, 16 The Amicable Resolution of International Mining Disputes

2017 ◽  
Author(s):  
Burnett Henry G ◽  
Bret Louis-Alexis
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Final Section ◽  
Mining Industry ◽  
International Arbitration ◽  
A Priority

For many executives and other participants in the mining industry, litigation or arbitration is an avenue of last resort; the resolution of disputes is a priority. This chapter focuses on the informal resolution of international or domestic disputes, often referred to as alternative dispute resolution (ADR). The various forms of ADR differ from international arbitration in that they provide for a non-binding means to assist the parties in attempting to reach an amicable consensual resolution of the dispute. While mediation and conciliation are the most widely used form of non-arbitration ADR, parties also use other forms of ADR such as expert determinations, mini-trials, and neutral evaluations. One of the incentives for parties to amicably resolve an intentional mining dispute is that it gives them the opportunity to restore or improve the original bargain. The final section of the chapter discusses the timing and procedural steps of ADR.

scholarly journals Open Book Exam as Assessment Method at Master Degree Programmes in International Arbitration and Alternative Dispute Resolution: Foreign Experience

2018 ◽  
Vol 8 (4) ◽  
pp. 26-30
Author(s):  
Olha Nahorna
Keyword(s):  
Dispute Resolution ◽  
Time Management ◽  
Alternative Dispute Resolution ◽  
Data Retrieval ◽  
Thinking Skills ◽  
Assessment Method ◽  
Open Book ◽  
International Arbitration ◽  
Educational Materials ◽  
Master Degree

AbstractAmong different methods which evaluate students’ performance and learning results at Master programmes in International Arbitration / Alternative Dispute Resolution is an open book exam. It helps check student’s knowledge as well as application of cognitive / intellectual / thinking skills and practical / professional / subject skills. Here examinees are allowed to use educational materials during the exam but they succeed only in case of thorough preparation of both a teacher and students, namely: adaptation of students to an open book exam format; development of necessary guidelines; determination of the targets which should be achieved; establishment of objective marking criteria; tailoring principles for reference materials selection; application of effective data retrieval methods and so on. A teacher must be ready to combat some potential problems which can arise while organizing an open-book exam: complete reliance on the prepared materials; poor time management of students; unfair competition (falsification of the material); corruption; cheating. In spite of some disadvantages, there is a list of an open exam advantages, prerogatively, stimulation of student intellectual vigour and application of theory into practice. An open book exam places the focus on higher abilities such as analysis, synthesis, compilation, interpretation, etc., making a student think deeply and creatively. The most important condition for successful open book exam is to outline the materials permitted for utilization in the classroom and insure their availability to the students, guaranteeing equality to every participant. It is proved that there is an urgent necessity to apply an open book exam as an assessment method at Master degree programmes in International Arbitration and Alternative Dispute Resolution.

scholarly journals The Adoption of International Arbitration as the Preferred ADR Process in the Resolution of International Intellectual Property Disputes

2021 ◽  
Vol 26 (5) ◽  
pp. 41-62
Author(s):  
David Lewis
Keyword(s):  
Intellectual Property ◽  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Legal Reasoning ◽  
Theory And Practice ◽  
Property Law ◽  
International Arbitration ◽  
Intellectual Property Law ◽  
Cost Efficiencies

Abstract This article, which is intended for arbitration practitioners, demonstrates that international arbitration as a subset of the field of alternative dispute resolution (ADR) offers a useful toolkit for the expeditious resolution of international intellectual property law disputes. The article demonstrates how the theory and practice of international arbitration is particularly well poised to address some of the specific considerations and requirements of paramount concern to the international intellectual property lawyers and their clients. The article will explain how the inherent features of the international arbitration legal landscape combine to indicate that it should be considered as the preferred method of ADR and explain how each of these features can provide both time and cost efficiencies. The article will identify the legal reasoning behind the benefits inherent to choosing international arbitration and will also address those circumstances when international arbitration may be precluded or otherwise considered unsuitable for intellectual property matters. The article examines several distinct benefits that international arbitration uniquely offers to international intellectual property law users and highlights some areas of the field that require additional caution.

8 Settlement Of Investor–State Disputes

2009 ◽  
Author(s):  
Gallagher Norah ◽  
Shan Wenhua
Keyword(s):  
Dispute Resolution ◽  
Dispute Settlement ◽  
Ad Hoc ◽  
Bilateral Investment Treaties ◽  
International Arbitration ◽  
Applicable Law ◽  
Host State ◽  
Different Types ◽  
Investment Treaties ◽  
Made In

The dispute-resolution provisions in bilateral investment treaties (BITs) have become the “ultimate” investor protection in modern investment treaties. This chapter reviews the different types of dispute-resolution provisions of the Chinese BITs. It first looks at the choice of arbitrations made in its treaties, ICSID, ad hoc, or other arbitration rules. It then continues to review the two main types of investor-state dispute-resolution clauses in China's BITs: restrictive—where the BIT permits international arbitration of disputes on the amount of compensation for expropriation only; and more liberal or expansive—which allows access to international arbitration for all disputes between the investor and host state. It then considers a topic of particular interest right now for investors and potential investors in China: the application of the MFN clause to dispute resolution. Finally, it looks at the applicable law to dispute settlement and the requirement to exhaust domestic remedies.

Effective Measures Of Preventing Due Process Paranoia In International Arbitration

2020 ◽  
Vol 02 (11) ◽  
pp. 72-80
Author(s):  
Bakhodir Mirzaraimov ◽  
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Due Process ◽  
Point Of View ◽  
International Arbitration ◽  
Process Flexibility ◽  
Party Autonomy ◽  
Prefer Alternative ◽  
Contemporary World ◽  
Arbitral Proceedings

In the contemporary world, people increasingly prefer alternative dispute resolution options to litigation in order to get more flexible process with quicker and cheaper results. One of the most recognizable forms of alternative dispute resolution is arbitration. The main benefits of arbitration are its neutrality of place, finality of process, flexibility, confidentiality, party autonomy, cost and time effectiveness, and finally its universally recognised process. However, lately arbitration has been criticizing for repeatedly extensions of deadlines by tribunals, recognitions of late evidences, acceptance of multiple amendments to a party’s written submissions and reschedule hearings by agreeing to last minute requests. This phenomenon is also known as due process paranoia. This article will emphasize the main reasons for due process from both respondents and arbitrators’ point of view. Moreover, the methods of improving the efficiency of arbitral proceedings and reducing cost and delay will be critically reviewed.

scholarly journals Intellectual property disputes and international arbitration

2021 ◽  
Vol 58 (3) ◽  
pp. 929-941
Author(s):  
Ay Yunus Emre
Keyword(s):  
Intellectual Property ◽  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Suitable Alternative ◽  
International Commercial Arbitration ◽  
Set Up ◽  
Commercial Disputes

International arbitration is widely enjoyed in international commercial disputes. Popular arbitral institutions are known for international commercial disputes. Moreover, academic papers generally analyse international commercial arbitration. However, intellectual property disputes are also resolved in arbitration. Therefore, WIPO set up arbitration and mediation institution in its body. Purpose of this paper is to emphasize that arbitration is also suitable alternative dispute resolution for intellectual property disputes.

scholarly journals URGENSI PEMBENTUKAN UNDANG-UNDANG TENTANG ARBITRASE INTERNASIONAL

FIAT JUSTISIA ◽  
2017 ◽  
Vol 10 (2) ◽  
Author(s):  
Huala Adolf
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
International Arbitration

AbstractThe Law No 30 of 1999 on Arbitration and Alternative Dispute Resolution contains provisions primarily on domestic arbitration. The provisions on international arbitration is scarce: it contains only 5 (five) articles which mostly regulate the international arbitration awards. This article suggested that Indonesia need a Law on International Commercial Arbitration.Keywords: Law, International Arbitration.AbstrakUU Nomor 30 Tahun 1999 Tentang Arbitrase dan Alternatif PenyelesaianSengketa memuat ketentuan-ketentuan yang sebagian besar mengenaiarbitrase nasional. Ketentuan mengenai arbitrase internasional hanyaditemukan di dalam 5 (lima) pasalnya yaitu ketentuan mengenai putusanarbitrase internasional. Tulisan ini menyarankan agar Indonesia perlu segeramembuat UU Arbitrase Internasional.Kata Kunci: Undang-Undang, Arbitrase Internasional

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